When terminated, an employee should generally receive reasonable notice of termination or pay instead of notice. This is unless the employee has signed a contract that contains an enforceable termination clause (which we’ve written about here).
The calculation of the employee’s notice period is based on the specific facts of each employee, such as their position, length of service, age, industry and availability of similar employment.
Often a shorter time spent in a job means a shorter notice period. However, if you are over 45 and working in a relatively senior position, the Court of Appeal has recently affirmed you may be entitled to a significant notice period upon termination.
In a recent decision from the Court of Appeal, Pavlov v The New Zealand and Australian Lamb Company Ltd., 2022 ONCA 655, the Court upheld a 10-month notice period for a 47 year old employee who had been working for just under three years. While Mr. Pavlov’s employer was arguing that he should only be entitled to a maximum of a five month notice period, the trial judge found that Mr. Pavlov’s age, salary, position, and duties entitled him to a much longer notice period, despite his short period of employment.
While Mr. Pavlov was neither a corporate director nor an officer of the company, court ruled that his duties as Director of Marketing Communications and Public Relations were significant within the company, and that his position was comparatively senior. The trial judge also took into account that the COVID-19 pandemic would make it more difficult for Mr. Pavlov to find new employment in a short period of time.
The Court of Appeal upheld the decision, and awarded the costs of the appeal to be paid to Mr. Pavlov. In this case, the Court recognized and affirmed the reality that an employee in a fairly senior position is unlikely to be able to find a comparable new position within a short period of time.
The important takeaway from this case is that even if you are in a position with a non-managerial title, and even if you have not worked in your position for a long time, you may still be looking at significant notice entitlements if you are terminated. If this is not reflected in your severance package, you should contact a lawyer to understand your rights.
You can contact Barrie and Toronto Employment Lawyer Nicole Simes at MacLeod Law Firm via [email protected] or 647-204-8107.