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Reasonable Notice for 26 Year Secretary is 21 Months

Background – An Employer’s Responsibility

An employer’s responsibility is to provide reasonable notice of termination to a long-term employee, if the termination is ‘without cause’.

Termination or firing ‘for cause’ might include such offences or breaches of the employment contract such as theft or dishonesty.

But assuming this there are no human rights code violations or discriminatory practices, generally an employer is entitled to terminate or fire an employee, but the employer will have to provide reasonable notice or pay severance in lieu of notice.

Case – 26 Year Secretary Given 4 Months Notice

For a secretary of 26 years, an employer ought to know of its obligations to acknowledge this length of service with reasonable notice that is substantial.

In Armstong v Lendon, 2015 ONSC 3004 (CanLII), the defendant employer appears to have testified that he was unaware of a common law responsibility to provide reasonable notice that would be well in excess of the statutory requirement as found in the Employment Standards Act.

This was a summary judgment motion and Sproat, J. found the secreatary to have been wrongfully dismissed and awarded 21 months of severance, at an annual salary of approximately $40,000.

The Employer Was a Lawyer; Aggravated Damages Awarded

It seems that the fact that the employer was a longstanding lawyer likely played into the considerations before the Court on this file.  Part of the employer’s defence was a lack of awareness of the responsibility to provide reasonable notice in excess of the Employment Standards Act; on the face of it, a difficult general knowledge issue for a practicing lawyer/ employer to claim ignorance.

The employer decided to retire at the end of 2012 and gave this secretary 4 months notice of his retirement (and the end of her employment).  In 2013, when the secretary approached him for further notice, the employer stated, for the first time, that she had actually been terminated for “just cause” – i.e. for a specific reason / defect in her behaviour as an employee which justified termination without proper notice.

The Court found that this assertion caused the secretary emotional distress, for which she sought some medical treatment.  For damages, the Court awarded an additional $7500 in aggravated damages;

[23] The plaintiff claims aggravated damages.  Her evidence in this regard includes that:

a) She felt as if she was kicked in the stomach after reading the startling and false allegations of just cause;

b) The allegations have caused her stress for which she has sought medical attention;

c) She continues to suffer self-doubt and humiliation.

[24] The plaintiff was certainly treated unfairly.  The allegations of just cause were baseless and hurtful.  The plaintiff has put forward evidence, which I accept, of mental distress related to the manner of dismissal.  I take into account that the plaintiff has not provided medical evidence and that considerable stress was no doubt caused by the mere fact of the termination of employment which is not compensable.  I award the plaintiff $7500 in aggravated damages for the humiliation, embarrassment, loss of self-esteem she has suggered and the damage to her dignity and reputation.

The Takeaway

Wrongful dismissal cases in Toronto are subject to a mandatory mediation, wherein the parties discuss the file informally with the help of an experienced mediator, and this assists both parties in realistically assessing their risk on the file.  Most wrongful dismissal cases do resolve prior to reaching Trial.

With long-term employee, certainly those with 10 years of seniority or more, employers should be particularly cautious as to how they effect a dismissal without cause, including the issue of reasonable notice or severance in lieu.

Gregory L. Chang
Toronto Personal Injury and Insurance Lawyer