We all know that “character of employment” is one of the core factors when assessing the period of reasonable notice, but how much of an impact does it have?
In 2017, the Ontario Superior Court of Justice reiterated the importance of character of employment in Skov v G&K Services Canada, in which the character of the plaintiff’s employment was in question. A mini-trial proceeding was ordered in place of summary judgment to determine whether the plaintiff was a “manager” at the company at the time of his dismissal. The court held that character of employment was an issue relevant to both the determination of reasonable notice owing to the plaintiff and the plaintiff’s mitigation efforts.
The plaintiff was 54-year-old Kevin Skov, who had been working at the defendant company for 21 years when he was terminated without cause in 2016. Skov held the title of “Customer Development Manager” and earned an annual salary of around $120,000, with bonuses provided under the company’s Management Incentive Plan. The employer contended that Skov was a manager in name only, and that his long service had warranted an “honorary” salary disproportionate to his position.
The plaintiff brought forward a motion for summary judgment but was denied due to the complex nature of the character of his employment. This denial served to reaffirm the importance of “character of employment” as a Bardal factor.
After reviewing the testimony of his managers and co-workers, the court held that Skov’s role was not “senior and managerial” as he had claimed. This was due to his lack of a leadership role, despite being paid as a mid to low-level manager. No one reported directly to the plaintiff and he exercised only minor discretion in his role, leading the court to believe that his function did not cross over into that of a manager. As such, the court decided that an appropriate notice period for the plaintiff was 18 months.
Character of employment
The plaintiff relied heavily upon the Ontario Court of Appeal’s decision in Di Tomaso v Crown Metal Packaging Canada and other cases to submit that the jurisprudence has distanced itself from the idea that lower level, unskilled employees deserve less notice because they have an easier time finding alternative employment. Prior to that decision, there was a widely recognized, though informal, cap on notice of twelve months for most lower-level employees.
However, character of employment is still a relevant factor in assessing appropriate notice periods, as the Court in this case made clear when it ordered a mini-trial so that evidence could be heard on the issue of whether the plaintiff was a manager or not. While declining in importance, the nature of a plaintiff’s role is still a significant factor to consider. The Court also considered the plaintiff’s length of service and age in their assessment of reasonable notice, finding that both factors warranted a substantial notice period.
Mitigation of damages
In this case, the notice period was reduced due to the plaintiff’s failure to mitigate his damages. While the plaintiff had applied to 43 jobs on LinkedIn as well as 80 additional jobs, he had lied about his role at G&K, claiming to have been the “Director of Process Improvement and Customer Development” on his resumé, a title he had never held. The Superior Court agreed with the defendants, who claimed that his mitigation efforts were compromised by his decision to “overshoot” and seek employment at a higher level than he was qualified to. The court said they could not condone this behaviour and reduced his reasonable notice period to 16 months.
This case confirms that the nature of a dismissed employee’s role continues to be a relevant factor in assessing reasonable notice. Where the issue is unclear, summary judgment will not be granted, as evidence will be necessary so that a Court can determine the nature of the former employee’s role.
This case also serves as a stark reminder that plaintiffs will be penalized where they fail to meet their obligation to make reasonable efforts to find new employment. In this case, the issue was not the extent or volume of the plaintiff’s efforts, as is often the case, but the fact that he was dishonest in his characterization of his previous role and focussed on roles that were not reasonable. As a result, his recovery was reduced.
By Ayesha Adamjee (Summer Law Student) and Stuart Rudner