As employment lawyers, we frequently caution our clients that determining the appropriate common law notice period for a dismissed employee is “more of an art than a science“. Indeed, while we are familiar with the core relevant factors that courts will consider – such as an employee’s age, length of service, type of position, etc. – there is no formula that can be used to predict this outcome with certainty.
This unpredictably was highlighted recently in Gent v. Askanda Business Services Ltd., a decision of the Supreme Court of British Columbia. In this case, the employee had worked for the employer for over 30 years and was 64 years old at the time of dismissal. Unsurprisingly, he sought damages for wrongful dismissal reflecting a 24 month notice period. The employer argued he had voluntarily resigned and was not entitled to notice at all.
The court found that the employee had not resigned, and was indeed wrongfully dismissed by the employer. However, in assessing the appropriate notice period, the court determined that the employee was not entitled to damages beyond his 65th birthday, which was only six months from the date of dismissal. This was because the employee had “firm plans to retire when he turned 65“. Despite the fact that the employee had never expressly advised the employer of his plans, the court concluded that awarding the employee damages beyond this date would essentially put him in a better position that he would otherwise have been had his employment not been terminated:
Mr. Gent is entitled to be put in the same position he would have been if Askanda had not wrongfully dismissed him, and he had been given appropriate notice before the termination of his employment. However, he is not entitled to be put in a better position. This is the rare case where Mr. Gent, who had a firm intention to retire when he turned 65, and relied upon the firmness of that intention to establish that it was not his intention to retire at 63 when he discussed retirement with his employer. I find on Mr. Gent’s own evidence that he would not have worked beyond March 1, 2022, even had he been given the opportunity.
Key Takeaways
The court acknowledged that the decision in Gent arose from “rare” circumstances where there was clear evidence of the employee’s intention to retire, producing a result that may not have been predicted if you were looking only at limited core factors such as length of service or age. This is an important reminder that assessing the common law notice period is an individual analysis dependent on the unique circumstances of each employee.
We frequently work with both employees and employers to help them understand their rights and potential liabilities, including assessing the appropriate common law notice period in the circumstances. If you are an employee who has been dismissed, or an employer considering parting ways with a member of your team, we encourage you to contact us before taking any action that could jeopardize your position.
