There is no “rule of thumb” as to the calculation of notice entitlements upon a wrongful dismissal. Typically, an experienced, senior manager may be entitled notice in the range of one month of notice for each year of service. An entry-level, junior employee’s entitlement may be somewhat reduced. In some cases, however, a short-term employment that ends preemptively may give rise to a considerable notice period that may even exceed the duration of the actual employment.It is unusual for more than two years’ notice to be deemed reasonable, irrespective of the duration of employment, except in the most compelling of circumstances.Inducement to leave stable prior employmentInducement is another factor considered by the courts in determining the reasonable notice period for a wrongfully dismissed employee. An employee who is terminated without cause from a relatively new position after being induced to leave an earlier, stable position may be entitled to an extended notice period that includes consideration of the time employed in the prior position:
There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualification of the servant.
“In my opinion, such inducements are properly included among the considerations which tend to lengthen the amount of notice required…. there is a need to safeguard the employee’s reliance and expectation interests in inducement situations. I note, however, that not all inducements carry equal weight when determining the appropriate period of notice. The significance of the inducement in question will vary with the circumstances of the particular case and its effect, if any, on the notice period is a matter best left to the discretion of the trial judge.”
– Justice Iacobucci, Supreme Court of Canada, Wallace v. United Grain Growers LimitedFor an inducement to affect the applicable period of reasonable notice, it must exceed the ordinary level of persuasion utilized by a typical, recruiting employer, and rise beyond the level of encouragement inherent in any ordinary hiring process.A notice period may be increased where specific promises, beyond the ordinary, have been made by an employer or recruiter as to future career advancement, expected increases in responsibility, long-term job security and or higher compensation with the new organization, particularly if employment is terminated after a short period of time.The representations of “headhunters” or professional recruiters on behalf of prospective employers may also be considered in determining whether inducement has been a factor.In considering the notice period applicable, a court will enquire as to whether there was any inducement, what degree of inducement was exercised, and the degree to which the inducement influenced the employee’s decision to leave the prior employment position.Where the employee has been actively looking for a new position, however, inducement may become a less compelling factor.Similarly, in McCulloch v. IPlatform Inc., the Ontario Superior Court held that no inducement had occurred, even where employment was terminated after only four months, due to restructuring. In McCulloch, an employee had pursued a new position for significantly greater pay in the absence of specific promises from the employer regarding future prospects. Justice Echlin referred to the employee as a “willing seducee” and declined to extend the notice period on the basis of inducement.Employment agreementsEmployment agreements often provide for a specified period of notice, or pay in lieu of notice, to be provided upon a termination of employment without cause. Upon a termination, it is necessary to determine at the outset whether any such agreement is applicable.Employment agreements are not always legally enforceable. This is particularly the case with respect to employment agreements which are entered into after employment has already commenced, upon the employer’s insistence. Where an employment agreement includes any provision that purports to limit the employee’s notice or severance entitlements upon termination, it is essential to obtain immediate advice from a qualified wrongful termination lawyer.Employment agreements that purport to limit severance entitlements may also be challenged following termination on the basis of ambiguity, unconscionability, or on the basis that they have become outdated due to position changes or promotions subsequent to the agreement.Summary – Reasonable NoticeMany factors must be considered in arriving at a determination of the reasonable notice period applicable to a specific circumstance, and qualified legal advice from a Toronto wrongful dismissal lawyer is generally necessary to assist in this making this determination.
…The point at which the employment relationship ruptures is the time when the employee is most vulnerable and hence, most in need of protection. In recognition of this need, the law ought to encourage conduct that minimizes the damage and dislocation (both economic and personal) that result from dismissal. … I note that the loss of one’s job is always a traumatic event. However, when termination is accompanied by acts of bad faith in the manner of discharge, the results can be especially devastating. In my opinion, to ensure that employees receive adequate protection, employers ought to be held to an obligation of good faith and fair dealing in the manner of dismissal, the breach of which will be compensated for by adding to the length of the notice period.“… The obligation of good faith and fair dealing is incapable of precise definition. However, at a minimum, I believe that in the course of dismissal employers ought to be candid, reasonable, honest and forthright with their employees and should refrain from engaging in conduct that is unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive.
Mr. Justice Iacobucci inWallace v. United Grain Growers Ltd., October, 1997
NOTE: If you have been dismissed, it is strongly advised that you seek legal advice regarding your entitlements prior to filing a claim under Ontario’s Employment Standards Act.You cannot start a court action against your employer for wrongful dismissal if you have already filed an Employment Standards Claim with the Ministry for the same termination, unless your claim is withdrawn within two weeks of filing it.
|Length of Employment||Notice period or Termination pay|
|Less than 3 months:||0|
|3 months, but under 1 year:||1 week|
|1 year, but under 3 years:||2 weeks|
|3 years, but under 4 years:||3 weeks|
|4 years, but under 5 years:||4 weeks|
|5 years, but under 6 years:||5 weeks|
|6 years, but under 7 years:||6 weeks|
|7 years, but under 8 years:||7 weeks|
|8 years or more:||8 weeks|
The reader is expressly advised and cautioned to consult with a qualified Employment Lawyer in Toronto, Ontario or Wrongful Dismissal lawyer for advice regarding the reader’s specific circumstances. This information is not applicable to any specific case, and is intended for information purposes only. It is not a substitute for legal advice and may not be relied on as such.© 2007-2015, Garry J. Wise and Wise Law Office, Toronto, Ontario, Canada. This information may not be reproduced without consent in writing.