The Cap of 24 Months Notice is Not Written in Stone
A dismissed employee who does not have a valid termination clause is entitled to common law reasonable notice (“reasonable notice”).
The standard cap for reasonable notice is 24 months, absent exceptional circumstances, which was confirmed by the Ontario Court of Appeal (“ONCA”) in Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA 512.
On March 14, 2022, the Ontario Court of Appeal in the case of Currie v. Nylene Canada Inc., 2022 ONCA 209 upheld the decision of the trial judge and awarded 26 months of reasonable notice to the employee. The Court found there were “exceptional circumstances” that warranted a notice period in excess of 24 months. The factors the Court took into consideration were as follows:
The employee’s age of 58 years old.
The employee’s limited education/skill set. The employee dropped out of high school and went into the workforce at the age of 18. Given her limited education, skills, and her age, the Court found that the termination “was equivalent to a forced retirement.”
The employee worked for the employer for her entire career. The employee’s experience was limited to one employer for whom she worked for 40 years.
The employee’s specialized skills would make it difficult to find comparable employment. The employee’s skills were not easily transferrable given that she worked in one manufacturing environment.
The takeaway – While Currie is a deviation from the norm, this decision provides an example of the exceptional circumstances that a court may consider in awarding an employee a notice period greater than 24 months.
