Canadian HR Reporter

www.hrreporter.com 9 "The age-old problem is judges keep on saying, 'Every case is different.' No, they're not, actually." Barry Fisher, mediator and arbitrator education, a very specialized skill set... not a lot of transferable skills…. She was actively seeking other employment and really wasn't getting anywhere with it. So, given all the factors, I think he's right." The judge highlighted Currie's limited education, length of service and her age, along with the dismissal being equivalent to a forced retirement, says Genevieve Cantin, an associate at Cavalluzzo in Toronto. "I wonder if the judge looked at that factor and weighed that more signifi- cantly than the others? I really don't know; it will be certainly interesting to see how another court deals with this, in light of the fact that Dawe says the opposite, which is... these factors are already considered into Bardal analysis… it really is fact-specific." But the employer also made a mistake in offering the statutory minimum, and then saying in court that 20 months was reasonable, says Fisher. "The employer who says, 'We believe this is the right notice period and we've paid it,' that's a whole different scenario. You don't look like you're trying to starve the plaintiff out." Nylene also failed to properly docu- ment the employment file, says Butler. Questionable conclusion? But every one of the factors that this judge sees as exceptional is already taken into account in the Bardal factors, says Fisher. "'Exceptional' should be something outside of Bardal [for example] where the employer does something which would have a direct, negative effect on the person's ability to get a job… or made unfounded allegations of cause." This case puts us back to the pre-Dawe days where there was even less certainty in an already uncertain world, he says. "Since Dawe, both employers and employees knew that 24 months was the realistic maximum and that it was quite easy to hit that mark. These two factors have made long-service cases easier to settle. Now, we will be back to plain- tiffs claiming 30 months' notice and defendants responding with 16 months," he says. "Now, this is like 'Here we go, again.'" But the judge came to the right deci- sion, based on the facts and this being a unique case, says Butler. "It's not too often you see this kind of situation unfold. In fact, I don't think I've ever heard of this type of fact scen- ario before," he says. "She was a long- term employee, she's had very limited "It appeared that there was a break in her service. But it just wasn't brought sufficiently to her attention, so that she could understand the implications of that." Takeaways for employers As for the implications of Nylene, it could lead to longer notice periods or bigger payouts, says Cantin. "It certainly could mean more litigation because employees might be hoping to get the 26 months," she says. "This deci- sion will signal to them, certainly, and to employment lawyers on the employee side that it is possible… if the facts match up with an extraordinary circumstance." It could also make people intract- able during the pandemic, says Cantin, "because surely COVID is an extra- ordinary event — but we'll have to see how that plays out." From Nylene's perspective, this result could have been avoided by providing Currie with a clear and unambiguous le tter and re-employment offer, says Butler. "They approached her initially and she thought about retiring and accessing her pension, and then they told her how she could do it," he says. "And those discussions are not really documented anywhere…. It would have been helpful if there was a letter that would have been sent to her setting out or summar- izing those discussions." The reoffer of employment was also not specific enough, says Butler. "It didn't say that they were recog- nizing her service. On the other hand, it didn't say that they were not recog- nizing her service, and it was vague on that issue. But it did indicate they were recognizing her service for other purposes. So that's a problem… I just think there were a number of mistakes made by her employer." CHRR

• Cover