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Every exit is an entrance somewhere else, and in situations of wrongful
dismissal your entrance is the "reasonable notice" pay to
which wrongfully dismissed workers are entitled well beyond minimal
amounts provided by Ontario's Employment Standards Act. In assessing
wrongful dismissal damages, Ontario courts therefore seek to put the
employee in the same financial position they would have enjoyed had
reasonable notice period been provided.
According to leading case law in Bardal v. Globe & Mail
Ltd.,
[1960] O.W.N. 253 (H.C.), reasonable notice periods are decided with
reference to each particular case, having regard to character of the
employment, length of employee's service to the company, employee
age,
and availability of alternative employment given employee's training,
qualifications, and training.
And of these Bardal factors, "employment responsibility"
and "length of service" are no doubt overriding circumstances
considered by Canadian courts today. According to Chief Justice
McEachren in the case of Ansari v. B.C. Hydro & Power
Authority,
[1986] 4 W.W.R. 123 (S.C.):
... [T]hey are all highly skilled graduate engineers whom B.C.
Hydro was satisfied to employ in responsible positions. Those factors
alone are sufficient to entitle these employees to a longer notice
period than in many other cases. ...
The next important factor in fixing the period of reasonable notice
is length of service. This the only important factor that does bear
directly upon the employee's prospects for future employment although
long service may add materially to the age of the employee which does
bear upon employment possibilities.
For reasons which are largely subjective and which Ontario lawmakers would not
presume to disturb, the law requires a longer notice period for a
long-term employee even though discharged employees of the same age,
skill and responsibility suffering under the same economic factors must
be assumed to require an equal period to obtain equivalent employment.
Reasons for this anamoly may be that a long-term employee has a
moral claim which has matured into a legal entitlement to a longer
notice period.
And so while judges and practitioners have set out similar tests for
determining appropriate length of notice, employees should note
generally-accepted rule-of-thumb of one-month's pay/benefits/bonuses per
year of service for Ontario employees terminated without cause, adjusted
upwards for employees older, exercising increased workplace
responsibilities, induced from competing employment opportunities at
time of hire, and given any unduly stressful/inappropriate method of
termination elected by the employer in accordance with Wallace v.
United
Grain Growers, [1997] 3 S.C.R. 701 and similar decisions.
Accordingly, lawyers expert in the field of employment law will
conduct detailed research, library, and database searches to best
predict what amount of compensation you might stand to receive from an
Ontario judge, and ultimately most persuasive means of convincing your
employer just how strong a case they're up against should they be
unwilling to negotiate maximum fair severance package out of court.
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