Short service, long notice
Employees with only a few years (or even months) of service tend to believe that they aren’t entitled to much notice or pay in lieu of notice upon termination. As we have written before, we have seen a trend of longer notice periods being awarded to employees in wrongful dismissal actions. (Reminder: a wrongful dismissal occurs when an employee is terminated without just cause and the employer does not provide adequate notice of termination.) Despite their short service, some employees with only a few years of service have experienced the benefit of this longer notice trend.
In Nemirovski v Socast Inc., 2017 ONSC 5616, a product manager was terminated without cause after 19 months of service. Socast Inc. paid Mr. Nemirovski two weeks’ pay in lieu of notice in accordance with the Employment Standards Act (“the ESA”). Mr. Nemirovski’s employment contract did not include a termination clause limiting his entitlements on termination to the minimum standards guaranteed by the ESA. Therefore, the judge found that Mr. Nemirovski was entitled to common law reasonable notice.
In deciding how much notice Mr. Nemirovski should have received, the judge took note of Mr. Nemirovski’s age, his well-paid professional position, and the evidence he submitted showing his extensive efforts to mitigate. It took Mr. Nemirovski more than 9 months to find alternative employment, where he was earning $15,000 less than what he earned at Socast.
The judge also noted that Socast Inc. did not provide a reference letter for Mr. Nemirovski. Furthermore, Mr. Nemirovski’s employment contract contained an onerous non-competition clause that had cost him a job, as the prospective employer did not want to risk litigation from Socast Inc. should it seek to enforce the non-competition clause.
Ultimately, the judge awarded 9 months’ pay in lieu of notice, which was almost have the amount of time Mr. Nemirovski was employed at Socast Inc. The judge found that the non-competition clause and Socast Inc.’s failure to provide a reference letter justified a notice period at the high end of the range.
If you have been terminated from your employment, even if you were not employed for long, it is important to consult an employment lawyer to find out if you are entitled to pay in lieu of notice or if your severance package is fair. If you would like to speak to a lawyer at MacLeod Law Firm, you can reach us at [email protected] or by phone at 647-204-8107.
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