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Should Reasonable Notice of Termination Depend on What Season It Is?

Should Reasonable Notice of Termination Depend on What Season It Is?

By December 9, 2019March 4th, 2022No Comments

When someone is terminated, they are generally entitled to reasonable notice at common law or pay in lieu thereof. In Canada, courts determine what the reasonable notice period is in any given case based on the Bardal factors, which include character of employment, length of service, age, and availability of similar employment having regard to the experience, training and qualifications of the employee. However, other considerations may also come into play. 

In Fraser v Canerector Inc, 2015 ONSC 2138, the Ontario Superior Court of Justice included an additional factor in its decision – the time of year. Mr. Fraser had only been working for Canerector Inc for 34 months and was 46 years old at the time of his termination. He was a senior executive with adaptable experience. The Court recognized that these factors would usually point to a shorter notice period of three months – especially due to his length of service.

However, the court extended the notice period by 1.5 months (for a total of 4.5 months) because he was terminated in June. The court found that it was foreseeable that hiring decisions for positions at Fraser’s level would likely be delayed at that time because it was summer. Therefore, many people who would be involved in making such decisions would be on vacation. 

Interestingly, the court allowed this to influence its decision as to the reasonable notice period despite also stating that the job market for executives with Fraser’s skills was reasonably strong that year. Further, Fraser actually managed to find new employment by August – only two months after his termination. 

Although courts have occasionally considered the time of year when determining reasonable notice periods, it is generally viewed more as a secondary factor. In Fraser v Canerector, it led to a 50% increase in the length of notice. Although the decision in Fraser was not appealed, it seems that it was an outlier as far as wrongful dismissal decisions go. Further, based on the somewhat conflicting findings of the Court concerning the job market at the time, the decision feels a little questionable. However, the court may have actually had the right idea in taking the time of year into account, even if its application of that idea was disputable.

Common law reasonable notice is meant to address a gap in employment earnings – to give an employee a reasonable amount of time to find new employment. The Bardal factors are primarily used to estimate how much time a terminated employee would reasonably need to find comparable employment. Many occupations are in areas that have somewhat predictable hiring cycles that make unemployment during certain times of the year much more difficult to overcome than at other times. Evidence of such hiring practices should arguably play a bigger role in the determination of common law reasonable notice periods.

One reason why the timing of termination may not be considered very often is that it is more difficult to prove – it involves evidence of factors outside of the specific employee’s circumstances. That said, so does the employability of different types of skills, yet courts now have standard assumptions for different areas of occupation based on years of jurisprudence. Perhaps over time, we could see more employees attempt to argue that the timing of termination should be taken into account in wrongful dismissal cases.

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