By Rhea Kamin
In the recent decision of Fraser v. Canerector Inc. we are reminded that the Bardal factors to be applied in the determination of reasonable notice are non-exhaustive and need to be considered within the factual matrix of each specific case.
Mr. Fraser was a short service employee of Canarector Inc. who held a senior executive position prior to his termination and had a reasonable level of experience given his age.
Mr. Fraser was terminated in June and this factor proved to be quite important to the court’s decision in setting the reasonable notice period. In finding that Mr. Fraser was entitled to four and a half months instead of three months, the court held that where an employee is terminated in the summer months, it is foreseeable that hiring decisions with respect to one’s mitigations efforts may be delayed somewhat on account of the vacation schedules of key decision makers during this time. The court held that timing in terms of termination plays a bigger role in the case of short service employees and the court thus increased Mr. Fraser’s notice period by 50% given the potential negative impact of the summer break on his job prospects.
Though Mr. Fraser re-employed in early August this case demonstrates that a court will be more likely to consider a lengthier than normal notice period for short service employees where they are terminated during the summer months.
Employers should thus be aware of the potential implications on the reasonable notice period when terminating employees during the summer months, while employee counsel should keep this factor in mind for purposes of negotiating longer notice periods for employees terminated during such times of the year (i.e. summer and Christmas holidays) where it is reasonably anticipated that the schedules of key decision makers may negatively impact a terminated employee’s mitigation efforts.
Please note that for purposes of this blog, I have only focused on the court’s analysis of the reasonable notice period.