Age Isn’t Everything: 61-Year-Old Gets 2 Months Notice

Wrongful Resignation

We often think of an employee’s old age as being a very commanding consideration in the determination of reasonable notice periods. After all, it is often more difficult for older employees to find new work, not to mention the stress of having to start over somewhere new late in one’s life. However, in Flack v. Whiteoak Ford Lincoln Sales Limited, a recent decision of the Ontario Superior Court, we see that old age does not always guarantee a lengthy period of notice.

Assessing Reasonable Notice

In determining the proper amount of reasonable notice, the Court turned to the typical test set out in Bardal v. The Globe & Mail. There, it was acknowledged that a determination of reasonable notice must always be decided with reference to each particular case, and considering a number of factors including not only an employee’s age but also their length of service, the character of employment, and the availability of similar employment. Although it is true that like cases should be treated alike, there are often good reasons for distinguishing between similar cases such as to arrive at different conclusions.  The Bardal factors are not exhaustive, and the weight allocated to each may vary.

In this case, the employee at issue was an older employee, being 61 years’ old at the time of his termination. However, he had only been with the employer for 9 months, meaning his length of service was relatively short. He was working as a Finance Manager at the employer’s car dealership, but was responsible for selling financial products as opposed to the cars. His salary in this position was $156,000 per annum (although he worked less than a year). These are the factors the Court had to consider in determining reasonable notice, although his age and length of service were perhaps more central than any other factors.

Length of Service

The employee, aware that his 9 months of service was a rather short period of time, attempted to argue before the Court that short service employees have, in recent years, attracted lengthier notice periods. Unfortunately, the Court disagreed.  In the Court’s view, an employee’s length of service indicated the degree of investment employer and employee have made to each other. The Court noted that the employee, prior to working with the defendant employer, had three other positions of a relatively short duration. This appeared to support the employer’s assertion that their industry is characterized by a fluid job market, where turnover occurs relatively frequently. In cases such as this, where the employee’s short length of service suggests low investment in the employer, the employer will have less of a responsibility to assist the employee while they search for alternative employment.

The Court noted that the employee was not enticed away from a long-term employer, or from a position where he enjoyed significant job security. If that had been the case, then the investment the employee had made would have been greater, and thus the employer would have owed the employee more. This was not the case here. His length of service, therefore, favoured a shorter period of notice.

 Age of the Employee

Could the employee’s short length of service be offset by his more senior age? According to the Court:

“It cannot be said that older employees are for that reason alone entitled to a greater notice period than younger employees. Indeed, there are very strong policy reasons that would militate against such a principle. Such a principle would quickly become a self-fulfilling prophecy. If hiring older employees brings along greater risk and greater commitment to a potential employer, the rational employer will discount applications from older employees in favour of younger ones unless other advantages outweigh that additional risk.” (emphasis added).

Therefore, the simple fact that an employee is older will not guarantee them a longer notice period. Even when considering the age of the employee, you must evaluate the weight to be given to that factor on a case-by-case basis. Here, the employee’s age was not prohibitive of his reemployment. For that reason, his age did not automatically attract a greater notice period because it did not make it more difficult for him to secure alternative employment.

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