In a recent decision, the Ontario Superior Court of Justice awarded 26 months of notice to a long service employee of Suzuki Canada named Syed Hussain. Mr. Hussain had worked for Suzuki Canada in various positions for approximately 36 years. At the time of his termination, he was almost 65 years old. Due to his age, his years of service, his supervisory position, and the particular difficulty he had faced and would face in finding comparable alternative employment, the court found that 26 months of notice was appropriate.
This case is exceptional because courts rarely award notice beyond 24 months. Twenty-four months of notice is viewed as the higher end of the range, barring exceptional circumstances. In this case, the Court explained that while no individual factor in this case was exceptional, the combination of all of Mr. Hussain’s personal circumstances called for a longer reasonable notice award of 26 months.
In the course of its decision, the Court also provided some useful guidance on the principles of mitigation, particularly as they apply to long-service and/or employees nearing the end of their working years.
First, an employee’s efforts to find replacement employment should be reasonable, but they need not be perfect. Second, the employer bears the onus of proving that the employee failed to take reasonable steps to mitigate his or her damages.
Third, when assessing the reasonableness of an employee’s job search efforts, the court does not expect an employee to begin his or her job search immediately after termination. It is reasonable for the employee to be provided with a brief period of time in which to recover from the shock of losing his or her job. According to the Court, an employee will be entitled to a reasonable period of time to get over the shock of losing her job, to organize her thoughts about obtaining new work, and to undertake the necessary research and preparation of her resume so that she is in a position to apply and compete for available positions.
In this case, the Court held that it was completely acceptable for Mr. Hussain to wait three weeks before beginning his job search, especially because of his age and because he had been terminated after so many years of service, and given the fact that he had been terminated without any reasonable notice, or even the minimum termination and severance pay required under the Employment Standards Act.
In its final award, the Court awarded 25.5 months of reasonable notice paid as a lump sum. In its reasons, the Court explained that Mr. Hussain’s reasonable notice period of 26 months should be reduced by two weeks of pay to account for the fact that the Court hearing had occurred nine months after his termination, and there was a 1 percent possibility that he would secure comparable alternate employment within the 26 month period.