December 9, 2013
An employee brought a motion for summary judgment after being terminated without cause from his twenty year employment as a machine operator with an auto parts manufacturer. At the time of his termination, the employee was 70 years old and his employment was not governed by an employment contract. The employee’s evidence on the motion detailed his unsuccessful efforts to find alternative employment, which included visits to more than 225 companies looking for any type of employment. His lawyer referred to a number of wrongful dismissal decisions with comparable facts where the Court awarded lengthy notice awards to elderly, relatively unskilled workers.
In awarding the employee 22 months’ notice, the Court took into account the traditional Bardal factors of age, character of employment, length of service, availability of similar alternative employment as well as training and qualifications. In doing so, the Court specifically rejected the suggestion that the character of his employment, that of a machine operator, should result in a reduced notice period. The Court reasoned that the empirical validity of the assumption that unskilled workers have an easier time finding alternative employment cannot be taken for granted in today’s world. The Court also noted that the employee’s advanced age was a factor that denied him the “flexibility of the young” when it came to finding alternative employment.
This decision reflects the Court’s increasing willingness to take notice of current demographic and economic labour market realities: older workers want, and often need, to continue to work; and, work of any kind – skilled or unskilled – is hard to come by. This decision also underscores the usefulness of employment contracts. Employers and employees alike should turn their minds to entering into employment contracts, regardless of the character of employment, in order to secure entitlements and/or limit liability in the event the relationship is eventually terminated without cause.