Low Level Position does not mean Low Reasonable Notice

Is Reasonable Notice for Labourers and Clerical and Non-Managerial Employees capped at 12 months? Ontario Courts have answered - and the answer is no.

“Character of employment” is one of the four cornerstone factors in determining the reasonable notice entitlement of a wrongfully dismissed employee.

Traditional Position on Character of Employment as a Factor of Reasonable Notice

Traditionally, there had developed a practice and understanding that specialized, skilled, and managerial employees will receive longer notice periods on the basis of the character of their employment. Contrastingly, labourers, clerical workers, and non-managerial employees would often be entitled to notably shorter reasonable notice periods on the same grounds. The courts had historically reasoned that there are less positions available for an individual with a specialized skills set and thus it would be more difficult for such individuals to find alternative, but similar, employment. On this reasoning, a longer notice period is warranted.

Judicial Trend – Character of Employment of Declining Importance

In the past few years, the courts have begun to move away from this traditional position, and have underscored that the character of employment is of declining importance in the determination of reasonable notice. In September 2015, the Ontario Superior Court turned this presumption on its head in Zoldowski v. Strongco Corporation, where the Court found that an unskilled employee would have more difficulty finding new employment and “employees with a particular marketable skill are more valuable to employers and should have an easier time finding employment.”[1]

Low-skilled, Physical Labourer receives 22 Months Reasonable Notice

More recently, in Drysdale v. Panasonic Canada Inc., the Ontario Superior Court awarded a non-specialized labourer 22 months of payment in lieu of reasonable notice.

In this case, the employee, Mr. Drysdale had worked with the company for 23 years and at the time of his termination, he was 58 years old. In addition, Mr. Drysdale’s annual compensation included $60,000 in salary, plus benefits and pension contributions.

Mr. Drysdale was a shipper in the employer’s warehouse and his duties included:

  • unloading and loading trucks using forklifts, pallet trucks, etc;
  • performing physical inventory counts;
  • internal transportation of received goods and supplies;
  • completing paper work and electronic transactions associated with the receipt and movement of products; and
  • performing general safety inspections of material, handling equipment consistent with certification training expectations.[2]

The Court discussed Mr. Drysdales’ character of employment, describing the job as one of “physical labour” and a “non-managerial position”. However, the Court then went on to say that the character of employment is a “factor of declining relative importance”.  Most importantly for employers, the Court echoed the ratio in Zoldowski v. Strongco Corporation, stating:

Even if the plaintiff could be considered a low level unskilled employee, it does not mean that he would necessarily have an easier time finding alternative employment than would a person in a managerial position.[3] 

It appears the traditional presumption that highly skilled employees will have a more difficult time finding alternative employment has now been firmly turned on its head, and the courts continue to recognize that employees in labour intensive, clerical and non-managerial positions may also face equal if not greater difficulty obtaining new employment.

The Take-Away for Employers

When considering what will constitute reasonable notice for labourers, clerical workers, and non-managerial employees, do not rely on the traditional notion that reasonable notice for low-skilled employees is capped around 12 months. Recent case law has set new precedents and continues to underline that the character of employment, as an independent factor, is one of decreasing significance in the determination of reasonable notice.

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Cassandra Da Re is a Corporate and Commercial Leasing Lawyer at Dale & Lessmann LLP, Toronto, Ontario, Canada, a full service business law firm. To speak to Cassandra please call 416-369-7843 or send an email message to her at cdare@dalelessmann.com

[1] at para 14.

[2] at para 5.

[3] at para 15.