In the early days of the COVID, it was suggested that, when evaluating wrongful and constructive dismissal claims in the context of the pandemic, the Courts would take into account the negative effects of COVID on the job market, when assessing whether employees have met their duty to mitigate. Similarly, it was suggested that the heightened difficulty in obtaining a job could result in the Courts awarding longer notice periods to employees terminated during the pandemic. See our previous article on this topic here.
While the development of case law regarding employment terminations during COVID is ongoing, the Superior Court of Ontario has recently provided further clarity on the subject. In Pavlov v. The New Zealand and Australian Lamb Company Limited (Pavlov) the Court held that the economic uncertainties caused by COVID should contribute to lengthening notice periods as they have a significant impact in the employee’s mitigation efforts and ability to find alternate employment.
When determining the correct notice period, Courts will generally take into consideration variety of factors, known as the Bardal Factors. The Bardal Factors are a non-exhaustive list of considerations that the Courts will take into account when assessing the appropriate notice period. These factors include, among others, the age of the employee, character of employment, length of service, and availability of similar employment. In Pavlov¸ the Court highlights, in reference to the COVID pandemic, that the availability of similar employment is a factor which may be affected by other economic factors beyond the control of the parties.
In Pavlov, the Court took into consideration that the economic effects of the pandemic were likely to be obstacles for the plaintiff’s efforts to obtain alternate employment. Furthermore, the Court highlighted that these obstacles would, or should, have been known to the employer at the time of dismissal. The latter consideration is of key importance as the Courts in Ontario have previously held, with respect to reasonable notice, that only the circumstances existing at the time of termination must be taken into account. This means that where an employee was terminated before the effects of the pandemic on the job market were known, employees would not be entitled to longer notice periods as such risks were unknown to the employer at the time. See our blog regarding pre-COVID terminations.
Given that the employee in Pavlov was terminated at a time where the employer would, or should, know of the negative economic effects cause by the pandemic, the Court awarded a longer notice period.
It must be noted that while the increase difficulty in finding alternate employment during COVID can result in longer notice periods, the availability of similar employment is only one of the factors taken into account by the Court. The plaintiff in Pavlov was awarded 10 months reasonable notice of termination or pay in lieu thereof. However, the Court does not specify how much the notice period was lengthened due to the difficulty in finding similar employment.
Generally, the Court will consider all of the Bardal Factors, as well as any other relevant factors, to determine reasonable notice. The assessment of notice will take into account the full context of the employment relationship.
In Pavlov, for example, in determining that the notice period should be 10 months, the Court took into account current economic conditions, but also the fact that the plaintiff’s position carried significant responsibility, authority, opportunity for growth and a high level of remuneration as well as the plaintiff’s age and experience. Considering all these factors, the Court determined that finding a similar position would be expected to take longer, particularly so during COVID, and awarded 10 months notice despite the plaintiff’s short service, being only 3 years of employment.
While the Court in Pavlov did not specify how much time was added to the plaintiff’s notice period to compensate for the increased difficulty in finding employment, the Provincial Court in British Columbia did so in its recent judgement in Snider v. Reotech Construction Ltd (Snider). In Snider, the Court determined, regarding the plaintiff, that as an employee with 2.4 years of service as a construction worker, the case law fixed the plaintiff’s notice period at 4 months. In addition, the Judge in Snider stated that:
“…I would add an additional two weeks based on the challenges posed by COVID-19 and the availability of similar employment, as contemplated by the Bardal factors. The defendant terminated the claimant during a serious global pandemic. He has retrained but still has not found another job. In the circumstances, I find that four and a half months is the appropriate notice given the claimant’s inability to find alternate and available employment.”
While the Court in Snider determined that an additional 2 weeks of notice was sufficient to compensate for the effects of the pandemic on the job market, it does not mean that the amount of time which may be added to the notice period in all cases will be fixed at 2 weeks. Instead, Courts are likely to take the holistic approach that was employed by the Court in both Snider and Pavlov, and determine the appropriate notice period taking into account all Bardal Factors in the context of COVID.
It is important to understand how each aspect of the employment relationship can affect your rights at the time of termination. We often advise our clients regarding their notice entitlements in light of all relevant factors. You may contact us at any time for assistance.