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Is “Character of Employment” Evolving as a Factor in Fixing Notice Periods? Part 1 of 2

Posted On: January, 21 2015

Some recent cases and articles have proposed that an employee’s “character of employment,” which is usually understood to mean an employee’s rank within an employer’s organization, could become a less relevant factor in assessing notice periods. The traditional approach has been that higher-ranked employees are entitled to greater notice periods than lower-ranked employees. This two-part blog will examine both the traditional approach, and the emerging egalitarian approach.

The Traditional Approach

Over the past 50 years, one of the most important factors that courts have considered in fixing notice periods has been the “character of employment.” This phrase has been interpreted to mean that employees who hold non-management positions, such as clerical, technical, customer service, or labour positions, are entitled to shorter notice periods upon dismissal. Managers and other highly-ranked employees are awarded longer notice periods, often receiving a month or more for each year of service.

It should be noted that the seminal decision in Canada establishing “character of employment” as a factor in fixing notice periods was the 1960 decision of the Ontario High Court (now the Superior Court of Justice) in Bardal v. The Globe and Mail Ltd. As the law currently stands, “character of employment” is not a formal legal test, but simply a factor to be considered alongside several other factors. As the law continues to adapt to changing social values, there is a real question as to whether this factor will retain its preeminent position in the common law wrongful dismissal analysis.

Not surprisingly, the role of “character of employment” as a factor in wrongful dismissal cases has been challenged in the past. The presumption that high-ranking employees should generally be entitled to more notice than lower-ranking employees has not been well received by class-conscious stakeholders. Nevertheless, some significant lower-court decisions deviating from this approach have been overruled on appeal.

For example, in Cronk v. Canadian General Insurance Co., 1995 CanLII 814, the Court of Appeal for Ontario considered an appeal from a lower-court decision wherein the Plaintiff, Ms. Cronk, was awarded a lengthy notice period despite the clerical character of her employment. The lower court held that it did not make sense to award senior managers longer notice periods than clerical staff. An important part of the reasoning was that senior managers are typically better educated than clerical employees, and should therefore be more able to quickly find replacement employment, not less able, as the traditional approach had assumed.

In Cronk, the Court of Appeal disagreed with the lower-court. The Court of Appeal confirmed that a person with clerical skills is not entitled to a lengthy notice period, partly because a person working in a clerical capacity has skills that are more general, as compared to the specialized skills of a senior manager. The Court of Appeal was persuaded by the traditional logic which has been that clerical staff should find replacement employment quicker because clerical skills are more transferrable than specialized management skills. The Court of Appeal rejected the proposition that the “character of employment” factor is just another way to ask how long it should take the employee to find replacement employment.

 

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