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A recent court case suggests where an employee falls on the hierarchical scale may not carry as much weight as it once did, says Toronto employment lawyer Kumail Karimjee.
In Hussain v. Suzuki Canada Ltd., the court awarded an employee 26 months’ notice of termination, surpassing the traditional mark of 24 months’ notice, Lexology reports.
Syed Hussain was a long-standing employee of Suzuki Canada Ltd. and was almost 65 when his position was terminated, the report says. Hussain, who was the company’s assistant warehouse supervisor, earned $48,790 annually, it continues.
Suzuki argued that the notice of termination should have been in the range of 12 to 18 months, but the Ontario Superior Court awarded Hussain 26 months’ notice of termination and ordered Suzuki to pay almost $20,000 in interest and costs, Lexology states.
The court held that “exceptional circumstances,” including the employee’s age, length of service and poor job prospects, warranted a lengthy notice of termination, the report says.
Karimjee says the case is “one of a growing number of recent cases awarding a long notice period to an employee who is not in a senior position.” He says that’s not the only element that makes it unique.
“It awards over 24 months which has generally been considered to be the high end of the range,” he says, adding, “The court’s use of a mitigation discount is also interesting. This approach has been used in previous cases, but the court used a one per cent discount which is unusual and frankly makes the issue of mitigation negligible in this case.”
Employees should know their rights on termination, especially as they age, says Karimjee.
“Employees should be aware that they may have an entitlement to a substantial severance if they are terminated and they should obtain advice before accepting any employer offer,” he says.
For employers, Karimjee says, the case underlines the importance of employment contracts defining obligations to departing employees on termination.
“This is the only way to obtain some measure of certainty when dealing with terminations,” he says.