They are more short-service employees in our economy today than ever before. Employees often ask me whether the severance package they received is fair. It depends on the circumstances, the employment contract and what they have been offered. However, understanding your rights and entitlements is crucial. More employees than ever are leaving good jobs for what they believe are better jobs but learning the hard way that the grass is not always greener on the other side. The truth is, employers are not rational and even in today’s economic climate – they often rather fire the employee than take the time and effort to train them. It is a sad reality. The contracts employees often side are so one-sided that they end up without a job in 3-4 months and without common law entitlements.
How much notice are short-service employees entitled to, and what factors influence what is considered reasonable?
I’m going to try to answer your question. This blog offers a high-level overview of the rights of short-service employees and their entitlements to reasonable notice under the law. It also examines a recent decision by the Ontario Superior Court of Justice, where an employee terminated after less than five months of service was granted a reasonable notice period of over five months.
Calculating Severance Pay for Short-Service Workers
If you’re someone who has read employment law blogs before you know what the Bardal Factors are. These factors determine what is fair when an employee is termination. I’ve delineated these factors before in several blogs. These are the factors: employee’s age, experience, availability of similar jobs etc. You’ve probably heard more about the employment standards act from your employer. They set the minimum standards – your common law rights is where things get spicy. You are often owed a far greater severance than what your employer is offering you.
HR often tells employees – especially those who have only worked somewhere for a short period – that we have been very generous in giving you an extra week more than the ESA. Don’t believe that tosh – most of the time HR is just appeasing who they work for. HR is not your friend people. Never was. The common law acknowledges that short-service employees should receive more severance to help them while they look for new employment. Employer’s want you to think that a short length of service means a short notice period. That’s not always true. A recent case speaks to this: Grimaldi v. CF+D Custom Fireplace Design Inc.
Employee terminated after 4 months
In the case of Grimaldi v. CF+D Custom Fireplace Design Inc., the plaintiff and the personal defendant (“VV”) met a number of times before signing the employment contract.
The 50-year-old employee was terminated without cause after four months and 23 days, receiving two weeks’ salary in lieu of notice. The employee then filed a wrongful dismissal claim against the company, seeking 12 months’ pay in lieu of notice.
The case reached the Court and the facts came out such as: both parties expected the employee to remain in the company for a long, long time. The Court stated that the employee’s short length of service likely affected the time it took for him to find a new job. Given his age, experience etc., it became difficult for him to find another job. This is why the Court give him a longer notice period than his employment tenure.
Court awards notice period of 5.5 months
The Court concluded that the employee was entitled to 5.5 months’ notice. This decision speaks to the challenges short-service employee face when trying to get a job. However, this case provides an optimistic outcome for individuals in similar circumstances. Book a consultation with us to see if you’re owed more money.
