Court Refuses to Consider COVID-19 Argument in Employment Case, Citing Lack of Evidence
In a recent Ontario decision, the court refused to entertain an employee’s submission on the impact of the COVID-19 pandemic on his notice entitlement, finding that no evidence was presented to support it.
Employee Terminated During COVID-19 Pandemic
The employee began working for the employer, Dell Canada Inc., in 2006 as a top executive for direct sales in Canada. In 2019, his salary was $465,695. He also received other incentives and benefits, including a sales target incentive that paid $231,941 in 2019.
The employee was terminated without cause on March 4, 2020.
Upon termination, the employee was paid for two weeks of working notice, 14.2 weeks of statutory service and eight weeks of termination pay pursuant to the Employment Standard Act. Eight weeks of continuing benefits were also paid.
The employee sought summary judgment arising from his termination, seeking 20 months of paid notice.
The employer did not dispute that the termination was without cause. It submitted that a notice period of 16 months was appropriate.
At the time of trial, on December 9, 2020, the employee remained unemployed, though he had made efforts to find new employment since his dismissal and had become involved in some business investments.
Court Reject’s Employee’s COVID Submission
The court applied the four factors set out in Bardal v Globe & Mail for the determination of reasonable notice, which are as follows:
- length of service,
- character of employment,
- availability of similar employment
The court first noted that the employee was 60 years of age at the time of trial and had been employed by the employer for 14 years.
The court observed that while his age maymake it harder for the employee to obtain “similar employment”, with the longevity of his employment and the added experience he had gained during those years, he may in fact qualify for other lucrative executive positions where that additional experience would be an asset.
The court further noted that while the employee’s years of service did not constitute being a “lifelong” employee, they did represent a substantial portion of his working life career.
With regard to the character of his employment, the court held that he was a senior manager with a high income, which favoured a longer period of reasonable notice.
Finally, the court considered the availability of similar employment having regard to the experience, training and qualifications of the employee. The court noted that the employee had made efforts to find such employment without success. The court then stated:
“I was also asked to take into consideration the economic downturn caused by the COVID pandemic as part of this factor. This would be on the basis there would be extra difficulty in finding and obtaining a new position. In this regard, I would note no evidence of same was presented to me. Further, it would not be appropriate to speculate on that submission without evidence. For example, while there has been an economic downturn for many, [the employee]’s former employer and his skill set is in the computer business which may have actually benefited from the COVID pandemic and its resulting greater use of computers for access to the internet and remote practices. The only evidence that touches on this area before me was [the employer]’s strong financial performance to October, 2020 as reflected in its increased share price. That is insufficient to make any concrete determination. Overall, I would conclude this factor does not favour a longer period of notice.”
Ultimately, the court concluded that the employee was entitled to 18 months of reasonable notice, which included his salary and other benefits.
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. 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.