Wrongful Dismissal Damages: Is Type Of Employment Still Relevant?

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Wrongful Dismissal Damages: Is Type Of Employment Still Relevant?

Should non-managerial employees get lower notice periods under Ontario law when they are wrongfully dismissed?  In other words, should the type of employment matter in a wrongful dismissal case?  According to the Ontario Court of Appeal, the answer is no.

Antonio Di Tomaso worked for 33 years for Crown Metal Packaging as a mechanic and press maintainer.  He was 62 years old at the time he was dismissed.  He had applied for work with 22 other companies after being let go, but as of the time of the summary judgment motion, he had not yet found new employment.

Di Tomaso was awarded 22 months of compensation in the Ontario Superior Court. In issuing this award, the Court considered his length of service, age, anticipated difficulty of finding alternate work and other applicable common law factors.

Crown Metal Packing unsuccessfully appealed to the Ontario Court of Appeal.  It tried to argue that since Di Tomaso fell into the category of “clerical and unskilled employees” he should be awarded a much lower notice period.  It suggested that 12 months was the “cap” for Di Tomaso.

The Court of Appeal roundly rejected that argument.  In doing so, it completely eliminated the notion that there is a 12 month cap on notice awards for certain employees.  Although “character of employment” may still be a factor for courts to consider in awarding notice periods, it is only one factor among several and not the primary or controlling factor.

The practical meaning of this decision is that many Ontario employees may now be entitled to much higher notice awards when they are wrongfully dismissed.  They will still need to demonstrate that they have made reasonable and appropriate efforts to try to find other work.  But long service non-managerial employees should now be entitled to significantly better treatment when let go.

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