A recent wrongful dismissal case in Ontario indicates judges may not want companies to play “hardball” when laying off older, experienced workers, says Toronto employment lawyer Doug MacLeod.
MacLeod, principal of MacLeod Law Firm, says the judge in Stephanie Ozorio v. Canadian Hearing Society, 2016 ONSC 5440 (CanLII) awarded the employee a high damage award in part because of her age, her prospects for new employment, and how she was treated at termination.
The plaintiff, then aged 60 and a 30-year veteran with a managerial position, told court she was dismissed without cause in November 2015 and was offered a 12-month severance package and limited benefits coverage of two months. In lieu of accepting it, the plaintiff was offered the 34-week minimum under the Employment Standards Act and a benefits package for eight weeks. The society told court the dismissal was a result of restructuring, according to the written decision.
The plaintiff, who was the regional manager for Toronto at the not-for-profit organization, was earning $97,309.22 annually, plus benefits, and received RRSP contributions of $4,789.64 annually.
She launched her suit in December 2015 seeking 24 months’ severance.
“Not all judges are the same, but some judges feel very strongly that you don’t play hardball with terminated employees, especially if age is a factor,” MacLeod tells AdvocateDaily.com.
Although Superior Court Justice Alfred J. O’Marra didn’t use that term in the decision, the justice hinted at it by noting the company offered the plaintiff the minimum under the Employment Standards Act, no outplacement counselling, no reference letter, “and they clearly gave her a low-ball offer,” MacLeod says.
O’Marra notes in his decision that older workers have a tougher time competing with younger employees.
“I accept the plaintiff’s submission that competition for senior managerial roles is very high in the Greater Toronto area and much more difficult for a person the age of the plaintiff, notwithstanding her undoubted competence and experience,” O’Marra wrote.
“Given the age of the plaintiff, the length of her employment with the defendant, more than 10 years as its Regional Director, a senior managerial position of significant responsibility, the limited availability of similar employment commensurate with her experience, training and qualifications, she is entitled to 24 months payment of salary and benefits in lieu of notice less compensation and benefits received under the ESA,” O’Marra ruled.
The court’s decision was not particularly surprising to MacLeod, who comments generally and was not a party in the action. He believes the courts are saying companies should show humanity while laying off veteran staffers.
The plaintiff is divorced and caring for a child who requires ongoing medical care and an elderly mother who lived with her, he points out. “Even though that is not technically relevant, I think that is something that most human beings would take into account,” he says.
It appears the judge wasn’t happy that employment counselling wasn’t offered to the plaintiff, although there’s no legal requirement to provide it, MacLeod says.
“The judge says they didn’t offer that, and this is a person who came out of university 30 years ago, so has no experience in looking for work and her skill set is very specific to the organization, so she could have really benefited from outplacement counselling,” MacLeod says.
Nor was a reference letter offered to her despite having no issues with her performance, he says.
“A reference letter costs nothing, and outplacement counselling can cost as little as $1,500,” MacLeod says.
The plaintiff in this case was a long-serving employee and a senior manager, “in a pretty responsible position,” he says. While there is no set formula that applies to all cases, lawyers have historically relied an on unofficial cap by courts of 24 months’ notice, MacLeod adds. “So she was at the top end of the range.”
Their offer “clearly was insufficient and the judge even noted that in closing arguments they were saying she should be getting 18 to 20 months, not 24,” MacLeod says. “He basically said if they’re admitting an argument that she was in the 18- to 20-month range, why did they offer her only 12 months when they fired her?”
Legally, older workers are considered those aged 60 and above, according to cases cited by O’Marra in his decision, although MacLeod says other cases note it is more difficult for laid-off workers as young as 45 to find new work.
“He basically said these older workers face extremely stiff competition with young applicants for the same kind of employment,” MacLeod says. “They’re younger, so they have a longer career in front of them. They’re recently trained, so they’re up-to-speed on current technology and education requirements, and you can pay them less.”