Unskilled worker gets 22 months’ notice

Other factors can play a role in determining notice regardless of type of job: Court
By Nikolay Chsherbinin
|Canadian Employment Law Today|Last Updated: 09/07/2011

Determination of an appropriate notice period is a crux of virtually every wrongful dismissal lawsuit. However, there is no formula for what will constitute proper notice in circumstances surrounding termination. In the pursuit of determining a proper notice period, judges are guided by the so-called Bardal factors: the character of the employment, the employee’s length of service, the employee’s age and the availability of comparable employment in the market.

In Love v. Acuity Investment Management Inc., the Ontario Court of Appeal acknowledged trial judges’ tendency to give a disproportionate weight to the “length of service” factor in their assessment of a proper notice period. Four months later, the court was presented with an opportunity, in Di Tomaso v. Crown Metal Packaging Canada LP, to consider the “character of the employment” factor, in the context of terminating a non-managerial employee’s employment, which came about through a string of five working notices of termination. Like in Love, the court reinvigorated the importance of attributing equal weight to all of the Bardal factors when determining notice. It further clarified the law of reasonable notice for unskilled, clerical and low level employees.

Antonio Di Tomaso, 62, was a 33-year non-managerial employee of Crown Metal Packaging Canada. On Sept. 9, 2009, Crown Metal informed Di Tomaso that it no longer required his services. Days before his expected termination date, Crown Metal informed him his employment would be extended by several weeks. Over the next five months, Crown Metal repeatedly extended Di Tomaso’s employment for a “temporary period” just before each termination date. In total, Di Tomaso received five separate written notices of termination, containing a total of four termination dates. On Feb. 26, 2010, Crown Metal closed the facility, resulting in a de facto termination of Di Tomaso’s employment.