Melvin Yee, the plaintiff, argued that he was entitled to a longer notice than that offered by his employer given the difficulty of finding a job during the health crisis.
The man reportedly applied for around 90 positions, without success. On the other hand, in his judgment, the judge Grant R. Dow points out that under the Holland v Hostopia.com decision, reasonable notice must be determined based on the circumstances at the time of the dismissal, which is August 2019 in the applicant’s case.
“It seems clear to me that the dismissals that occurred before the pandemic and its effects on employment opportunities should not be considered in the same way as those that occur after the start of the pandemic,” said the judge.
“This lets us understand or imply that we can expect longer notice periods for individuals who lose their jobs during the pandemic and who work in an industry that has been negatively affected”, analyzes Me Cédric Lamarche , Toronto lawyer specializing in labor law.
Not a free pass
While this decision opens the door to longer notice periods, not everyone will be able to benefit. “It is important not to overestimate the fact of the pandemic and to think that all of a sudden, all the notice periods will skyrocket because of that”, agrees Me Pierre Lermusieaux, employment lawyer based in Toronto.
Employees will need to demonstrate that fewer similar jobs are available. It is one of the 4 factors that judges analyze before making a decision, in addition to the employee’s age, number of years of service and the nature of his job, as provided by Bardal v. Globe & Mail.
However, the Court also has the discretion to place particular emphasis on one or the other of the factors, depending on the particular circumstances of the case, according to Me Pierre Lermusieaux.
“In the context of the pandemic, you can see situations where the Court is likely to place more emphasis on the possibility of getting a similar post as a factor, to impose a longer notice period. For example, if the employee works in certain sectors that have been hit hard, ”explains the Toronto lawyer.