Traditionally the courts have awarded senior and highly skilled employees longer reasonable notice periods than lower level employees. The justification for the longer notice periods was based on a presumption that it generally takes longer for these types of employees to find new employment because there are fewer job positions open to them. For example, there are more open positions for a receptionist than a senior vice president.
In recent years Ontario’s courts have questioned this long-held presumption. The Ontario Court of Appeal held in both Di Tomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469 and Arnone v. Best Theratronics Ltd., 2015 ONCA 63 that the character of employment is a factor that is declining in importance when determining a dismissed employee’s reasonable notice period. This is particularly true in circumstances when an employer attempts to argue that a low-level unskilled employee is deserving of a shorter notice because he or she should have an easier time finding alternative employment.
In the September 2015 decision, Zoldowski v Strongco Corporation, 2015 ONSC 5485, Justice Hood inverted this presumption and found that an unskilled employee is likely to find it more difficult to find new employment. The judge wrote at para. 14:
If anything, employees with a particular marketable skill are more valuable to employers and should have an easier time finding employment. The plaintiff herself is a case in point. Her skills were vulnerable to automation and she was replaced by a computer.
The plaintiff was 39 years old and had been employed for 17 years by the defendant in a variety of position. Her last position with the defendant was Parts Administrator earning an annual base salary of $47,998.00. She was awarded 14 month’s reasonable notice of dismissal. In reaching his decision, Justice Hood also took judicial notice of the difficult economic climate in southern Ontario and, in particular, the GTA.
The recognition that lower skilled employees may find it more difficult to find new employment than higher skilled (and higher paid) employees reflects the reality of the modern marketplace. If the purpose of notice is to provide a reasonable opportunity for the dismissed employee to find new employment the law should adapt to this reality.