Canadian HR Reporter

CANADIAN HR REPORTER NOVEMBER 2019 10 NEWS court said the terms were unam- biguous and the termination pro- vision would have been enforce- able against Dawe had it been brought to his attention, but since it was not established that it was brought to his attention, the pro- vision was unenforceable. Retirement concerns is is probably one of the more extreme cases in terms of having an employee who has so many years of service, is so senior at the organization, is far along into his career and is not bound to an em- ployment contract, says Portman. "It's kind of a real unicorn of features to have in a plaintiff." But it's important to remember that Canadian employers do have the unfettered right, with only a few restrictions, to terminate an employment contract, he says. "And the balance there is that it be only terminated with rea- sonable notice, unless there's just cause or an employment contract saying otherwise. And so the no- tion that an employee can be en- titled to additional work, it really runs contrary to that fundamental bedrock notion." It's an interesting position to suggest that people might be in the workforce longer because of the end of mandatory retirement, says Crawford. And the motion judge sort of suggested that there's a bias against older people, "which was not really based on anything. And I think that's the main reason why he was overturned on appeal was that he really just didn't point to any exceptional circumstances, that would have justified extend- ing the... cap that had been placed by previous Court of Appeal deci- sions," she says. "In fairness to the trial judge, I think there were probably some cases that would have supported that; certainly, some lower court decisions we've seen in the last few years where people have been get- ting as much as 30 months' sever- ance awarded by the court. But I think the Court of Appeal really wanted to dial that back and make sure that it was truly exceptional circumstances that existed." If the dismissal had been for discriminatory reasons, the court could have compensated for that, but not by extending the notice period, says Crawford. "Just having someone close to the retirement age would not be enough to extend the cap." Unless employers have made representations that they owe employees work until their retire- ment, they owe nothing of that kind, she says. "at might be one of the ex- ceptional circumstances, if there was proof that there had been some sort of guarantee of working to retirement, which would be… pretty extraordinary to see." Where the appeal court dis- agreed with the motion judge was this concept of society's atti- tude — or the employee's indica- tion — of wanting to work until retirement as a factor to war- rant exceptional circumstances, which would result in an award higher than the upper range of 24 months, says Avneet Jaswal, an as- sociate at Fasken in Toronto. "e Court of Appeal made it clear that an employee's age and length of service is a factor that's al- ready considered when determin- ing the upper range of 24 months — it's something that's already taken into account… But it wasn't something that's exceptional, that would warrant something higher than the 24-month period." Exceptional circumstances But when the court refers to excep- tional circumstances, it's "confus- ing and convoluted," says Portman. In looking at the apparent ex- ceptional circumstances in the Keenan case, the court relied on the couple's length of service, age and seniority, "all of which actu- ally the plaintiff in Dawe had in excess of the plaintiffs of Keenan." "On the one hand, the court has said, 'Well, we have to look be- yond just these traditional factors in fixing notice periods if we're going to break the 24-month cap.' But then they turn right around and say, 'Keenan is an example of where that cap can be broken.' But Keenan only looked at those very same factors. So… we don't have really any guidance as to what those exceptional circumstances might be," he says. "I do think that there is another shoe to drop in terms of what ex- actly are or are not exceptional circumstances." Beyond having an enforceable employment agreement, employ- ers can't, by and large, control what an employee's notice period is — that's usually based on factors be- yond their control, says Portman. "But without knowing what exceptional circumstances are — perhaps exceptional circum- stances could include factors that are within the employer's control — and without that guidance, how are they going to know what trip wires to avoid?" In talking about exceptional cir- cumstances, all the factors Gor- don was looking at weren't par- ticularly exceptional aside from the issue of mental impairment, says Crawford. "I think the message in the court of appeal is: 'e cap is really the cap and it's capped for good reasons.' And unless something really extraordinary happens, the court shouldn't be awarding past the cap." As for exceptional circum- stances, that could involve some- one who's quite ill, over 65 and no longer has access to long-term disability benefits, she says. "To me, the clear message is it [had] better be pretty exceptional. And long service in a senior role is not going to get you there, which would be 90 to 95 per cent of the cases that we see when we're ad- vising clients who have very long- term employees." and incorporating ethical prac- tices and obligations for employ- ees," she says. And a hotline — especially an external one — provides a safe, confidential, anonymous environ- ment where people feel protected, says Walker. "It's a risk mitigator both from a reputational point of view and a financial point of view… It gives people that avenue, that safety net to come forward." But people need to know the service is offered and be able to trust management, she says. "If they're a bit cynical about management really being honest about putting the service forward, because they're there to protect the whistleblower, then they will use it… You have to make them aware of it. And then you have to make sure that they feel safe us- ing it." In setting up a hotline, the key is for it to be promoted to employ- ees, anonymous and consistently checked with followup in a timely fashion, says Shaw. "And then [it's about having] a real protocol and process in place for how you investigate, because you want every matter to be dealt with basically the same, depend- ing on the severity… [with] the same process followed." A hotline isn't that costly and can really help in catching major issues such as fraud or health and safety issues. But culture is impor- tant, he says. "If there's already a poisoned work environment, the chance of people using a hotline and trust- ing that are pretty slim. So, you would need to combine setting up the hotline with establishing trust with your employees and the fact that they'll actually be listened to." It's also important to figure out whether the complaint is frivolous or not, says Shaw. "You need to investigate to make sure that [people] are not somehow being wrongly harmed with frivolous complaints. But then, assuming that it's not frivo- lous, [it's about] avoiding repri- sals… because if people think that they're being punished or reprised against by making these com- plaints, they're not going to do it." It's one thing to have various structures in place, but what's not clear is what kind of policies and practices actually work, says Turk. "And how do you create a cor- porate culture that sees drawing attention to errors or problems as a valuable thing, so that the people who do it don't get iso- lated or treated badly by cowork- ers or having their possibility for promotion undermined, getting isolated?" he says. "How does the corporate entity deal with those kinds of human emotions in a way that encourages people to draw attention to these problems but in an environment that doesn't turn toxic? It's very hard to do." Anonymity, followup key to hotline success 'It's a bit confusing and convoluted': lawyer WHISTLEBLOWERS < pg. 2 30 MONTHS < pg. 7 Salaries & Bonuses Retirement Plans Group Insurance Policies & Best Practices Get ComPenSatIon Data wcbc.ca Compensation Surveys Incentive Programs Job Descriptions Job Evaluation Pay Equity Performance Appraisal Salary Administration Sales Compensation COMPENSATION info@resourcecorporation.com | (416) 498-7800 ext. 101 | www.resourcecorporation.com Compensation Surveys Incentive Programs Job Descriptions Job Evaluation Pay Equity Performance Appraisal Salary Administration Sales Compensation CONSULTING. Credit: expatpostcards (shutterstock) Many employers were probably breathing a sigh of relief recently when the Court of Appeal for Ontario decided 24 months — not 30 months — was adequate when it came to the notice period for a long-service executive.

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