As has been discussed in previous postings, all employee/employer relationships are defined by an employment contract. Sometimes these contracts are written out, however, many employment contracts are implied. Simply put, this means that the terms, conditions and dynamics of the employment relationship are based on experience and on the reasonable expectations of the employee and the employer.
If an employee does not have a written employment contract, a fundamental term of that contract will be that upon termination, the employer must provide that employee with reasonable notice. In normal circumstances, reasonable notice is designed to allow the employee the time and resources required to secure comparable, alternate, employment. The trouble with this principle, however, is that in most circumstances, nobody, including the employee, their lawyers, or the judge, know exactly how much time will be required to do just that. For this reason, our courts have longed recognized that there are four factors considered in assessing damages for assessing a notice period.
The first of these factors is the employee’s age. Research has shown that employees in the twilight of their career have more difficulty in securing comparable employment than those at the beginning or at the peak of their career. There are several reasons for this. Employees in 50s and 60s, for example, may have higher salary expectations. Potential employers may also be concerned about these employees’ imminent retirement, or that there may be increased demands for pension, benefits and vacation. For whatever reason, employers are often reluctant to take on aged hires and courts have recognized this fact by according lengthier notice periods for employees over the age of 50.
The second factor considered by Canadian courts is the character of employment. This factor will take into consideration the position and responsibilities of the individual. The logic is that employees in management type roles will have more difficulty finding employment with comparable responsibilities than employees with lesser responsibilities. This factor is increasingly being viewed as inaccurate and there is ongoing debate in the legal community whether it is still appropriate. However, at least for the time being, the character of employment continues to be a relevant consideration in the Province of British Columbia.
The third factor in considering an appropriate notice of termination is the employee’s tenure, or the length of time that the employee has been with the employer. With time, employees of long tenure will develop skills specialized to their place of employment. Resumes become outdated, interview practices become rusty and Canadian courts have recognized that an employee’s tenure is a very important factor in considering damages for wrongful dismissal.
Finally, Canadian courts consider the dismissed persons’ “employability”. This catch-all takes into consideration the employee’s education, demand for their skills or trades, and a host of other factors. In this criteria, one needs to only think of a hard working and loyal employee, but with little education, who slowly climbed the ranks within his company only to be terminated. The probability that that same employee will be able to replicate those achievements without any education in a today’s economy would be challenging, to say the least. One may also think of someone who is extremely specialized but where few opportunities for employment exist. Think of a nuclear scientist who works in that Province’s only nuclear power generating system station. If that employee loses his job, the chances of finding comparable work in that same area would b extremely limited.
In assessing damages for wrongful dismissal, lawyers and judges will consider all of these factors and apply them to the facts of each case. Unfortunately, due to the many variables that must be considered, there is no hard and fast rule for deciding how much an employee is entitled to for their wrongful dismissal. However, in many cases, employee compensation can be equal to several months’ wages for the termination of their employment.