By Paul Miller of Boughton Law Corporation
[Ed. note: Although a British Columbia case, it evidences how variable are common law entitlements in Canada.]
Employers seeking advice about what notice period or pay in lieu of notice should be given to an employee who is not being dismissed for cause are often told by their legal advisors that there are four main factors to consider: the character of the employment, the length of service, the age of the employee and the availability of similar employment having regard to the experience, training and qualifications of the employee. This article will focus on the first of these factors.
Most legal advisors would traditionally advise employers that, all other things being equal, an employee who was “higher up the chain” would be entitled to more notice than an employee in a less senior position. The decision in Systad v. Ray-Mont Logistics Canada Inc., 2011 BCSC 1202, if followed by other judges, will cast doubt on that traditional advice.
Systad was 65 years old and had been an employee of Ray-Mont Logistics Canada Inc. for 18 years. At the time of his dismissal, he had no managerial responsibility, but did supervise new drivers on specialized container equipment. Upon dismissal, he was provided with eight weeks’ pay in lieu of statutory notice, as required under the Employment Standards Act.
The main issue of the lawsuit was the amount of common law pay in lieu of notice that Systad was entitled to. He maintained that he was entitled to one month per year of service, whereas the employer held that this rate was reserved for those employees whose “character of employment” carried with it more responsibility and seniority, the theory being that senior employees required more time to find suitable alternative employment. Mr. Justice Burnyeat disagreed with the employer and found that the reasonable notice period for Systad was 18 months. His rationale for disregarding the employer’s submission on the “character of employment” was that it represents antiquated social values and is antithetical to the law’s ultimate goal, namely egalitarian justice.
In support of his rationale, the judge relied on the New Brunswick Court of Appeal’s decision in Bramble v. Medis Health. In that case, the Court noted that the theory that junior employees had an easier time finding work had been empirically challenged and represented antiquated social values. Treating junior employees less favourably based on the character of their employment undermined, without justification, their self worth.
What remains to be seen is how many B.C. judges will follow Mr. Justice Burnyeat’s rationale. If it is followed, one thing is certain: junior employees will be entitled to longer notice periods than have typically been awarded before. The additional cost involved will be borne by employers.
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