Canadian Employment Law Today

Canadian HR Reporter, 2020 owned the stations, which put the number of radio stations under the Rogers Banner at 51 across Canada. About 11 months later, in Au- gust 2018, Rogers implemented a restructuring that included terminating the employment of several employees of the stations, including Rothenberg. Rogers offered Rothenberg slightly more than 53 weeks' pay in lieu of notice and required him to sign a full release. The company also offered him career counselling services to assist him in finding other employment. However, Rothen - berg rejected the offer and refused to sign the release. As a result, Rogers paid him the mini- mum statutory entitlement for termination and severance pay under the Canada Labour Code. Rothenberg got in touch with contacts in the radio industry and searched online for radio broadcasting jobs, but he found no available positions within a one-hour drive of his home. In addition, they all required a post-secondary education. Around the same time, Rothenberg devel - oped some medical issues and he underwent quadruple bypass heart surgery in December 2018. This was followed by weekly medical treatment for six months and monthly treat- ment for an additional six months, which inter- fered with his plans to use the career counselling services offered by Rogers. Sued for 30 months' pay, employer gave 18 Rothenberg sued for wrongful dismissal in September 2019, claiming that he was entitled to damages equal to 30 months' pay in lieu of notice due to his age, years of service and lack of comparable employment. Rogers consented to paying him an additional amount that put his total termination pay to the equivalent of 18 months' salary in lieu of notice, but it also dis - puted that he was entitled to any further dam- ages, arguing that there were many other non- Rogers-owned radio stations in the region and he could have taken lesser positions of unskilled work for only a small pay cut — Rothenberg had received a moderate salary at the Tillsonburg stations. The court noted that it had been established in the jurisprudence that 24 months was gener - ally considered the upper limit on reasonable notice entitlement, unless there were excep- tional circumstances that warrant additional damages. It acknowledged that there were deci- sions by trial courts awarding 26 months, but these were prior to the formal establishment of the 24-month limit or involved employees with significantly longer service periods than Rothenberg's 20 years at the Tillsonburg radion stations. Examples of special circumstances that might warrant damages more than the limit included combinations of age, service and the character of the position. However, none of the special circumstances resembled Rothenberg's situa - tion, said the court. The court also stated that the "rule of thumb" calculation of a particular amount of time per year of service had been previously debunked. Higher end of damage scale but not above limit However, the court found that Rothenberg's age and years of service did point to a damage award "towards the higher end of the scale." Even though Rothenberg was paid a moderate salary at the radio stations, his position as a news re - porter and radio broadcaster was "unique and specialized" and in "the shrinking radio indus- try in which Rogers appears to be a major em- ployer," said the court. The court also found that, while there were a few other radio stations not owned by Rogers in the area, any positions they had required post- secondary education and were not a reasonable commute away from Rothenberg's home. In ad - dition, there was nothing comparable for some- one with Rothenberg's decades of experience in the industry. Rogers claimed that Rothenberg didn't make sufficient attempts to mitigate his damages, but the court found that the inquiries he made with his industry contacts and online searching was sufficient — particularly since the health issues he developed not long after his dismissal hin - dered his job search and made him even more unemployable due to his inability to do jobs that were moderately labour intensive. "There can be no obligation to mitigate dam- ages by finding alternate employment when the employee is totally incapable of working," said the court in disagreeing with Rogers' position that there was a lack of mitigation. " In addition, Rothenberg's evidence showed that most employers weren't interested in hir - ing someone in their 70s, he hadn't worked in any other field for is entire working life span- ning more than five decades, he didn't have the educational requirement for most broadcasting positions and he had no other skills or training that transferred to other industries. The court determined that a reasonable no - tice period for someone in Rothenberg's role with his experience and lack of prospects for similar employment was 21 months. Rogers was ordered to pay Rothenberg damages equal to an additional three months' salary on top of the 18 months it had already paid him — just shy of $10,000. For more information, see: • Rothenberg v. Rogers Media Inc, 2020 ONSC 5853 (Ont. S.C.J.). 6 | | January 27, 2021 January 27, 2021 « from LONG-TIME on page 1 Exceptional circumstances needed to exceed 24 months' notice Cases and Trends Cases and Trends CREDIT: 123DUCU iSTOCK The worker hadn't worked in any other industry during his 55 years of employment.

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