Not long ago, the Ontario decision Kraft v. Firepower Financial Corp. demonstrated the willingness of courts to award higher notice periods to employees who demonstrated clear mitigation efforts in spite of the many difficulties stemming from the COVID-19 pandemic and its crippling effects on the job market. Lest we began to believe such a holding was an anomaly, the Ontario Superior Court appears to have recently confirmed that a dismissal during the pandemic, combined with diligent yet fruitless mitigation efforts, does indeed engender a longer notice period.
What Happened? Pavlov v. The New Zealand And Australian Lamb Company Limited, 2021 ONSC 7362
Mr. Pavlov worked with the defendant employer for three years before his termination at the age of 47. He held a very senior position as Director of Marketing Communications & Public Relations and earned approximately $131,943 per year. He was subject to an employment agreement containing a termination provision that was unenforceable, therefore the common law applied. His termination was without cause, meaning he was entitled to common law reasonable notice or pay in lieu of that notice. The only issue for the trial judge to decide was the quantum of that notice.
On the one hand, Mr. Pavlov was hoping to achieve a notice period of between 9 and 12 months. On the other hand, the defendant employer was aiming for a period of 3 to 4 months, particularly in light of Mr. Pavlov’s relatively short service.
Determining Notice: The Trial Judge’s Analysis
In answering the all-important question of what period of notice would be appropriate, the trial judge considered all the usual factors: Mr. Pavlov’s age, duties, level of remuneration, and his admittedly short length of service. But, the trial judge also considered an additional factor: “the prevailing economic uncertainties which had a negative impact on Pavlov’s ability to secure similar alternative employment.” What did they mean by this?
The trial judge was of course referring to the undeniable impact the COVID-19 pandemic had on the economy and available job market. Mr. Pavlov was terminated in May of 2020 – still in the very early stages of the pandemic. At the time, employers were very reluctant to hire new employees as the economic feasibility of doing so was extremely uncertain. To this point, the trial judge commented:
“At the time of Pavlov’s dismissal, the initial effects of the global pandemic were being experienced by industries of all sorts, including those associated with international importing and distribution. It is a reasonable inference to draw from the evidence and the timing of the dismissal that the effects and uncertainties of the pandemic were obstacles to Pavlov’s efforts to obtain alternate employment. These obstacles would, or should, have been known to [the defendant employer] at the time of Pavlov’s dismissal.”
In light of all the above considerations, the trial judge concluded that Mr. Pavlov was entitled to 10 months’ reasonable notice of termination or pay in lieu thereof. No doubt they were persuaded by the difficulties introduced by the COVID-19 pandemic on Mr. Pavlov who, to his credit, diligently applied for over 100 jobs in that terrible economic climate with no success.