I will tell anyone who asks – and many people who don’t ask – that every employer should require every employee to sign an employment contract with an enforceable termination clause.
More and more employers are doing so, however there are still many employees who have not signed an employment contract with an enforceable termination clause. Particularly because of the Ontario Court of Appeal’s decision in Waksdale, which likely renders many termination clauses unenforceable.
A termination is wrongful if an employee is not provided with adequate notice of termination. Most employees receive no notice of termination so that the termination is wrongful. An employee who has not signed an enforceable termination clause is generally entitled to receive reasonable notice of termination.
When determining the amount of reasonable notice of termination an employee should have received judges continue to use the factors set out in a 1960 decision which includes: the employee’s age, length of service, position and the availability of comparable employment given the person’s education and experience. The impact of COVID on reasonable notice periods relates to the last factor; that is, the availability of comparable employment.
There are a number of cases that have considered this issue and it seems that judges consider when the person was terminated during the COVID pandemic.
In a recent case, a judge considered an employee whose employment was terminated on May 20, 2020 or about 2 months after Ontario was placed into a state of emergency and noted:
At the time of (the employee’s) dismissal, the initial effects of the global (COVID) pandemic were being experienced by industries of all sorts, including those associated (with the employee’s industry). It is a reasonable inference to draw from the evidence and the timing of the dismissal that the effects and uncertainties of the pandemic were obstacles to (the employee’s) efforts to obtain alternative employment. These obstacles would, or should, have been known to the employer) at the time of (the employee’s) dismissal.
There are not enough decided cases to state with any degree of certainty how much more notice an employee will receive (if any) as a result of being terminated during the COVID pandemic. To date, some judges have allocated a specific increase whereas other judges have not stated how much they have increased the notice period.
Some industries have been busier than normal during the COVID pandemic and therefore the job market for some positions has been stronger than usual.
Employers should therefore gather evidence to support the notion that the availability of similar employment was no worse than usual during the COVID pandemic such that the reasonable notice period should not be increased because of the COVID pandemic. Otherwise a judge may draw an inaccurate inference about the job market for the terminated employee.