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Difference between revisions of "Employment Law Issues (9:V)"
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Employment Law Issues (9:V) (view source)
Revision as of 17:32, 12 August 2019
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iv) the availability of similar employment, having regard to the experience, training and qualifications of the employee. | iv) the availability of similar employment, having regard to the experience, training and qualifications of the employee. | ||
These are known as the Bardal factors. The current upper limit of “reasonable notice” is 24 months, generally for the most long tenured, older, and senior level employees. | These are known as the Bardal factors. The current upper limit of “reasonable notice” is 24 months, generally for the most long tenured, older, and senior level employees. While there are some cases beyond this upper limit, they are the exception. The Supreme Court has endorsed this list in a number of cases; see e.g. ''Honda Canada Inc v Keays'', 2008 SCC 39, 2 SCR 362. However, these factors are not exhaustive, and additional factors may be considered on a case-by-case basis. | ||
The Supreme Court has endorsed this list in a number of cases; see e.g. ''Honda Canada Inc v Keays'', 2008 SCC 39, 2 SCR 362. | |||
However, these factors are not exhaustive, and additional factors may be considered on a case-by-case basis. | |||
Reasonable notice is an entitlement to assist the employee. In ''Michela v. St. Thomas of Villanova Catholic School'', 2015 ONCA 801, the Ontario Court of Appeal held that the financial health of a company does not reduce its notice obligations to employees. | Reasonable notice is an entitlement to assist the employee. In ''Michela v. St. Thomas of Villanova Catholic School'', 2015 ONCA 801, the Ontario Court of Appeal held that the financial health of a company does not reduce its notice obligations to employees. | ||
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Additionally, the UBC Law Library and many other law libraries hold publications with tables of cases sorted by job type, such as the Wrongful Dismissal Practice Manual by Ellen E. Mole (which is also found on Quicklaw). WestlawNext Canada also offers Quantum Services Database for wrongful dismissal. Comparing the Bardal factors of the employee in question with those of previous cases using either of these methods can assist in finding an appropriate range for the reasonable notice period. As a starting point, you can ask the particular employee how much time it would take or has taken to find similar work for similar pay. | Additionally, the UBC Law Library and many other law libraries hold publications with tables of cases sorted by job type, such as the Wrongful Dismissal Practice Manual by Ellen E. Mole (which is also found on Quicklaw). WestlawNext Canada also offers Quantum Services Database for wrongful dismissal. Comparing the Bardal factors of the employee in question with those of previous cases using either of these methods can assist in finding an appropriate range for the reasonable notice period. As a starting point, you can ask the particular employee how much time it would take or has taken to find similar work for similar pay. | ||
Note that Reasonable Notice is concerned with a period of time, not an amount of money. A permanent part-time employee is entitled to the same notice as a full-time employee. The fact that the employment is part-time will be reflected in the amount of compensation, based on the amount of time the employee was actually working (Stuart v. Navigata Communications Ltd., 2007 BCSC 463 at para. 15) | |||
Severance is generally awarded in a manner correlated to length of service. However, is some circumstances short service employees can be entitled to proportionally more severance. Senior level short term employees, particularly upper management employees, may be entitled to proportionally more severance than their more junior counterparts. An example of an extended severance period for short service employees is found in Chapple v. Big Bay Landing Ltd. (Inc. No. 0764163), 2018 BCSC 1666, where the employee was 61 years old, and had worked as a resort manager for less than two years. The Court awarded a nine month notice period. | |||
==== e) Extensions to Notice Period ==== | ==== e) Extensions to Notice Period ==== | ||
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Just cause for termination exists when an employee fails to respond to these measures. However, the ESB and courts require that the employer prove that all these steps were taken. | Just cause for termination exists when an employee fails to respond to these measures. However, the ESB and courts require that the employer prove that all these steps were taken. | ||
There is also a requirement that the employee | There is also a requirement that the employee appreciates the significance of the warning (''Korber v Can West Imports Limited and Satten'', [1984] BCWLD 737). | ||
See ''Hennessy v Excell Railing Systems Ltd.'' (2005 BCSC 734), for a comprehensive list of what an employer must show to establish poor performance. | See ''Hennessy v Excell Railing Systems Ltd.'' (2005 BCSC 734), for a comprehensive list of what an employer must show to establish poor performance. | ||
