You might have expected more notice from judges. After all, lots of them are older. They are senior practitioners of their trade. Surely, they could subscribe to calculating reasonable notice for without cause terminations at one month for every year of service. 24 years - 24 months; 30 years - 30 months, 37 years etc. Right? Nope. Wrong. The normative limit is 24 months. This is the ruling in Dawe and Equitable Life released on June 19, 2019.
In a thoughtful but direct decision, Judge Trotter for the Court of Appeal panel agreed with counsel Michael Hines and Amanda Hunter that the proper notice period for a 62 year old senior vice president terminated without cause after 37 years of loyal service was 24 months. The Motions Court judge had decided the employee would have worked to at least 65. So he awarded 30 months. The Appeal Court were very clear in declaring support for the leading case, a 2006 decision in Lowndes and Summit Ford Sales. It concluded that two years would be the highest amount in normal circumstances. Because each situation is case-specific, and there is “no absolute upper limit or cap”, Judge Trotter repeated the Lowndes ruling that “only in exceptional circumstances” will the base notice period rise above 24 months.
The fatal problem for the Motions Court judge was that he did not consider the question of exceptional circumstances. He asserted that broader social factors were now at play in society. He observed that mandatory retirement at 65 had been eliminated in 2006. He accepted that many employees worked beyond 65. He found as a fact that the plaintiff in his case had indicated his desire to work at least 3 more years to 65. But, rather than deciding if exceptional circumstances existed to increase the amount of notice, he decided that “presumptive standards no longer apply.” On this point the Court of Appeal disagreed.
There is no guaranteed employment at common law. The Appeal Court wrote that simply having many years of good service was not enough to entitle an employee to really extended notice. They agreed that holding a senior position, after a career long employment relationship, being in one’s 60’s and having difficulty finding new employment all warranted a substantial notice period.
But - long, loyal dedicated service is satisfactorily recognized and rewarded by a notice period of 24 months. This had been the standard set in Loundes. Since then and after the elimination mandatory retirement, other cases had followed the same analysis. Therefore, unless exceptional circumstances were proven, 24 months was the upper limit.
Since no exceptional circumstances were found in the Dawes case, the proper base notice was 24 months.
What this clear pronouncement tells us is that every case involving a long service employee must be evaluated for special circumstances. There is no absolute limit but unique facts must exist. Obvious examples may include written declarations to employers by employees of their intention and expectation to maximize their pensionable service. Or statements to the employer in annual evaluation meetings that the employee wants to work to 70. Perhaps an employee should try to secure a guarantee of continued employment. Some employers will agree. Some bargaining may be necessary.
The key take away for the employee who wants to continue working is to communicate that intention to the employer. Special circumstances may arise if the employee can prove the employer knew of the employee’s intention and supported it.