26 Months' Notice Of Termination Awarded To 65 Year Old Employee

Author:Ms Genny Na
Profession:Borden Ladner Gervais LLP
 
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Edited by Jennifer M. Fantini and Naomi E. Calla

In Hussain v. Suzuki Canada Ltd.,1 the court awarded an employee 26 months' notice of termination, surpassing the traditional high-water mark of 24 months' notice.

Syed Hussain ("Hussain") was a long-standing employee of Suzuki Canada Ltd ("Suzuki"). He had 35 years of service and was almost 65 years old at the time of his termination. He held the position of Assistant Warehouse Supervisor, earning $48,790. He obtained general skills on the job but did not have a definable trade, and therefore, was found to be less marketable. Hussain was terminated without cause on February 15, 2011. Suzuki argued that the notice of termination should have been in the range of l2 to 18 months.

In a surprising decision, the Ontario court awarded Hussain 26 months' notice of termination and ordered Suzuki to pay almost $20,000 in interest and costs. The court held that there were "exceptional circumstances" that warranted lengthier than usual notice of termination. While each factor on its own was not considered deserving of lengthier notice, the combination of the employee's age, length of service and poor job prospects all amounted to exceptional circumstances.

The decision is noteworthy in a number of aspects:

The court awarded a lengthy notice period, despite the non-managerial and relatively junior position held by Hussain. The fact that Hussain was in the "twilight if not at the end of his working years" served to increase, rather than decrease, the notice period. More recently, termination as a result of a restructuring due to economic issues has resulted in a reduction of notice. However, this had no effect in reducing the notice period for Hussain. The Court also made a number of interesting findings with respect to mitigation. A plaintiff has a duty to mitigate his damages for wrongful dismissal by taking all reasonable steps to obtain alternate, comparable employment. In this case, Hussain began his applications within 3 weeks of his termination. He submitted 27 applications and only received 1 telephone interview, which was unsuccessful. Suzuki was critical of the fact that Hussain did not immediately start applying for work. The court held that Hussain should be allowed a reasonable period of time to get over the shock of his dismissal, organize his thoughts and prepare his resume. The court noted that besides the termination, not having been given any termination and severance pay, in...

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