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Beware of the one month per year of service “rule”, part 3

I’ve written a number of times regarding cases that significantly depart from the so-called one month per year of service rule. (See Part 1 and Part 2). Yet another case has illustrated the risk an employer runs in assuming their liability will be capped at one month per year of service.

In Ellerbeck v KVI Reconnect Ventures, 2013 BCSC 1253, the British Columbia Supreme Court concluded that an employee with 3.5 years of service was entitled to 10 months of notice. Ellerbeck, a certified management accountant, was employed as a corporate controller. She was dismissed the day before her 60th birthday and provided with 10.5 weeks of pay in lieu of notice. She brought an action for wrongful dismissal and took the position that she was entitled to 12 months of notice. The employer argued, among other things, that the Court should apply the rule of thumb of one month notice per year of service.

The Court found that Ellerbeck held a senior level management position and that, due to her age, she faced greater barriers in obtaining a similar position. Based on those factors and a review of the case law, the Court concluded that Ellerbeck was entitled to a notice period of ten months.

This case again affirms that courts are prepared to depart significantly from the purported one month per year of service “rule”. The determination of the appropriate notice period is very contextual and there is no mathematical formula that can be applied with certainty. Employers would be advised to obtain legal advice on the potential notice period that an employee could be awarded in order to assess the risks before dismissing an employee.

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Alison J. Bird

Employment Lawyer at Cox & Palmer
Alison Bird is a lawyer practicing in Halifax with the Atlantic regional law firm, Cox & Palmer. Alison is growing her practice in the areas of labour & employment law and litigation. Alison is a frequent presenter on employment law topics and recently presented on the challenges being faced by employers dealing with changing demographics in the workplace. Read more
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One thought on “Beware of the one month per year of service “rule”, part 3
  • Kellie says:

    It is unfortunate, but I think we are going to see a lot of older workers let go and even though notice may increase due to that, it will be difficult for them to find similar employment due to their age. Even though human rights protects discrimination based on age, it will be a difficult thing to prove . . .interesting times ahead I believe.