2 Considerations If Terminating An Older, Long-Term Employee
One of the more difficult decision faced by an employer is how much notice to provide to an employee after a longer period of employment. The difficulty of the decision lies in the fact that, at law, "reasonable notice" is not based on a chart or formula but rather on a list of factors that will be considered by the court in determining what is reasonable. Those factors are:
the character of employment,
the length of service of the employee,
the age of the employee,
the availability of similar employment,
the experience, training and qualifications of the employee.
These factors are very important when considering how much notice to provide to a longer-term, older employee. A 2016 Ontario Superior Court of Justice case, Ozorio v Canadian Hearing Society, illustrates:
Ms. Ozorio was terminated after approximately 30 years of employment due to the restructuring of the non-profit where she worked. She was 60 at the time of the termination. Ms. Ozorio held several positions during her term of employment including the position as Regional Director for more than the last ten years.
At the time she was terminated, Ms. Ozorio was making over $100,000 a year. Initially, the employer offered her $93,000 in severance pay. During the course of the litigation that followed, the offer was increased to $97,000.
Ms. Ozorio was awarded salary in lieu of 24 months notice. In making the award, the judge stated:
[14] Generally, a longer notice period will be justified for older long term employees who may be in a competitive disadvantage securing new employment because of their age.
[16] [H]aving served one employer for such a lengthy period of time, a potential new employer may view that individual as rather set in his ways and not as adaptable to change.
The Court went on to note that the employer had not offered to provide a letter of reference or out-placement counselling services to assist Ms. Ozorio in gaining alternate employment.
The Lesson: Older, long-term employees are perceived to face obstacles in finding alternative employment. This perception will likely result in a longer notice period being awarded to the employee. As such, an employer should take the likelihood of reemployment into consideration in making any offers for severance pay. Moreover, a prudent employer will offer assistance in finding alternative employment including letters of reference and, potentially, out-placement counselling services. While, these steps do not guarantee that the employee will obtain equivalent employment, they will assist the court in determining that the employee was dealt with reasonably.
It is always prudent to consult with an experienced employment law lawyer prior to terminating any employees. Should you need assistance with this or other employment law matters, please contact: adrianlawoffice@gmail.com
Ozorio v Canadian Hearing Society, 2016 ONSC 5440 (ONSC) https://www.canlii.org/en/on/onsc/doc/2016/2016onsc5440/2016onsc5440.pdf
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