In a recent wrongful dismissal case, an Ontario court found that the terminated employee had not been a senior manager or executive, despite having the title of “Vice President”.

Employee Terminated After Five Months

The employeewas hired by the employer bank on November 5, 2018 pursuant to a contract of indefinite hire. His title was that of “Vice President, Equity Trading” and his gross salary was set at $100,000 per year, in addition to monthly benefits. The employee was also eligible to participate in an equity bonus pool if he met certain criteria.

The employee’s primary duties were to develop business, establish and manage relationships with existing and new institutional clients, and execute equity transactions and trading strategies to generate trade flow and deepen the employer’s reach in Canada.

However, on March 26, 2019, almost five months after being hired, the employee was dismissed without cause. At the time, the employee was 58 years old.

Upon termination, the employer paid the employee $5,769, which was the equivalent of three weeks’ pay in lieu of notice, plus 2.5 weeks of benefit continuation.

The employee brought a claim for wrongful dismissal. He argued that there exists a presumption at common law that senior management or executives who are wrongfully dismissed are entitled to a minimum of 12 months’ notice irrespective of the length of service.

At trial, the court noted:

“Unfortunately for [the employee], as at the date of the hearing of this motion, and despite numerous efforts as reflected in the record, he remained unemployed. Furthermore, at the time of the hearing of this motion, Ontario continued to be coping with the economic realities of COVID-19.” 

Court Finds Employee Was Vice President in Title Only 

The court began by setting out the standard factors that govern a court’s assessment of what constitutes reasonable notice at common law, as follows:

1) character of the employment;

2) length of service of the employee

3) age of the employee at the time of termination, and

4) availability of similar employment having regard to the experience, training and qualifications of the employee.

However, the court noted that there is no static formula to be applied relative to the length of time the terminated employee was employed;  rather, the court must consider these factors within the factual matrix presented.

Additionally, the court rejected the employee’s claim that he was entitled to a minimum of 12 months’ notice irrespective of his length of service based on the fact that he was employed as senior management or as an executive, finding that he was neither. The court stated:

“[The employee] placed much stock in the fact that his title, Vice President Equity Trading, was sufficient to satisfy the characterization of his position as being at the senior management or executive level. However, the title, in this case, is not sufficient in and of itself to warrant that characterization in light of what his role and responsibilities actually entailed.”

Instead the court found that the employee was neither a senior manager nor executive within the meaning of the case law for several reasons including:

  • he had not had any role in supervising coworkers in his department;
  • he had not been responsible for the oversight or strategic decision-making in his department;
  • the fact that all employees in the division held the title of “Vice President” in order to give the employees clout when dealing with the employer’s institutional clients, not to denote senior management or executive positions within the bank;
  • he was not part of the employer’s executive team; rather, the employee was three levels removed from the executive team level.

Despite its finding that the character of the employee’s employment did not meet the criteria for a senior manager or executive, the court did find that his age was a factor that warranted particular attention, stating:

“At the age of 58, [the employee]’s job opportunities are less promising than for a younger person with his experience, training and qualifications, as might be suggested by his inability to obtain new employment over the past 15 months.”

As a result, the court found that providing the employee with three weeks’ pay, 2.5 weeks’ continuation of benefits, and no letter of reference and/or outplacement counselling assistance had been unfair and unreasonable in the circumstances. Instead, the court held that the employee was entitled to a reasonable notice period of two months.

Based on a period of two months’ pay in lieu of notice, and accounting for the sum already received by the employee in severance pay and benefits, the court ordered damages to the employee in the amount of $11,359.

For Help

The Kitchener-Waterloo employment lawyers at Petker Campbell Postnikoff have many years of experience advising non-unionized employees and employers on a variety of workplace issues, including harassment and termination. Our team will walk you through the details of your dispute, advise you on your rights, responsibilities and obligations, and help you understand your options. If your dispute cannot be settled through negotiation, we can represent you through mediation and the court process.

We represent clients throughout southern Ontario, including the communities of Cambridge, Guelph, Elmira, Brantford, Fergus, Elora and the surrounding area. Call 519-886-1204 or contact us online for a consultation.