Canadian HR Reporter

52 www.hrreporter.com S P O N S O R E D decision Zoldowski v. Strongco Corporation, the plaintiff brought a motion for summary judgment to determine the appropriate notice period following her termination without cause. At the time, she was employed as a parts administrator and was 39 years old with 17 years of service. The evidence before the court was that the plaintiff had applied for numerous jobs in the Greater Toronto Area but obtained only one interview and no job offers. She had sought job counselling, actively searched for new roles and registered with a temporary employment agency. Her inability to find work was due, in part, to the economy at the time. The motion judge held that the court could "consider the economic climate the employee is put into when terminated" and awarded damages equivalent to 14 months' notice because "an economic downturn... may make it more difficult to find a job and may justify a longer notice period." Conversely, in the 1982 Ontario Superior Court decision Bohemier v. Storwal International Inc. (reversed in part in 1983), the court took the position that economic factors ought not to unduly influence the length of the appropriate notice period. In that case, the plaintiff was 59 years old and had been employed for 35 years when his employment was terminated for financial reasons. He made efforts to find work and In light of the considerable liability associated with a mass termination, an employer contemplating a permanent reduction of all or part of its workforce should first consult with experienced employment counsel. Impact of COVID-19 on reasonable notice A b s e n t a n e n f o r c e a b l e e m p l o y m e n t agreement that establishes an employee's notice entitlement on termination, a non- unionized employee terminated without cause is entitled to reasonable notice of termination at common law. "Reasonable notice" is meant to reflect the length of time it would take a person in the employee's circumstances to find comparable alternate employment. The traditional factors considered when determining reasonable notice include an employee's age, years of service, character of employment and level of compensation (see the 1960 Ontario Superior Court of Justice decision Bardal v. Globe and Mail). This is not intended to be an exhaustive list and courts have also recognized other factors, such as the state of the economy at the time of termination. Unfortunately, courts have taken differing approaches as to how the state of the economy should apply as a factor. This means that there is some uncertainty about the potential impact of COVID-19. In the 2015 Ontario Superior Cour t As the economy slowly recovers from the impact of the 'first wave' of the pandemic, many businesses are now facing the reality of either having to permanently reduce staff or close their doors. Priya Sarin and Matthew Badrov of Sherrard Kuzz look at the potential impact of an employee's entitlement to notice of termination HOW WILL THE PANDEMIC IMPACT EMPLOYEE NOTICE PERIODS? These are unprecedented times. It may be that courts recognize that these unique circumstances militate against longer reasonable notice awards for terminations in the time of COVID-19. t h e p a s t s i x m o n t h s , Canadian businesses have tried to mitigate the impact of COVID-19 by implementing remote work arrangements, pivoting their product lines or modes of delivery or temporarily closing down their workplaces. As the economy slowly recovers from the impact of the "first wave" of the pandemic, many businesses are now facing the reality of either having to permanently reduce staff or close their doors. With rare exception, both scenarios trigger an obligation on the part of an employer to provide employees with notice of termination or pay in lieu of notice. The question then is: What is the potential impact of the pandemic on an employee's entitlement to notice of termination? Mass or group termination In most Canadian jurisdictions, employment standards legislation provides for an enhanced notice entitlement if an employee is terminated as part of a "group" or "mass" termination. Each jurisdiction has its own definition of mass termination, but it generally includes that a prescribed number of employees (for example, 50 or more) be terminated within a specified time period and geographic location. In addition, some provincial employment standards legislation also requires notification of a mass termination be provided to the applicable provincial ministry of labour. In some cases, failure to provide the requisite notice can have significant financial consequences. For example, in Ontario, a "Form 1" must be filed with the ministry and posted before any notice of termination under the Employment Standards Act takes effect. An employer that neglects to file the Form 1 in a timely manner will not be able to rely on any working notice provided to an employee prior to the filing of the Form 1 to reduce its statutory notice obligations. Matthew Badrov Lawyer at Sherrard Kuzz Priya Sarin Lawyer at Sherrard Kuzz E M P L O Y M E N T L AW THROUGHOUT

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