April 6, 2020
A great deal has changed in the past 30 days.
COVID-19 has resulted in businesses being required to take economic measures which only weeks before would have never been contemplated: layoffs, salary cuts, even full closures by order of provincial governments.
How long will this go on? What will it do to our economy? The questions mount and no one has the answers.
What impact will COVID-19 have on the assessment of an employee’s entitlement to reasonable notice of termination? We really do not know that either. There has never been a global pandemic for the courts to consider. We do know that at present it is a very different situation than a few weeks ago in terms of the current job market and the “availability of reasonable alternative employment” for those who are terminated.
In the aftermath following the last recession, we were left without clarity in the case law as to the entitlements of employees on termination. There were cases which found that notice periods should be longer, and cases which held that notice periods should be shorter, both as a result of economic conditions.
While in Ontario, it has since been clarified by the Court of Appeal that an employer’s individual financial circumstances are not a relevant consideration in determining the period of reasonable notice to which a wrongfully dismissed employee is entitled, that case is likely to have limited application to a global pandemic, where it is not about the employer’s financial circumstances so much as the world’s. (see: Michela v. St. Thomas of Villanova Catholic School, 2015 ONCA 801)
What we do know for certain, there will be cases heard in the years ahead. There will be appeals and while we certainly hope the world will never again need to look to these COVID-19 precedents, they will be there.