Employee with 36 years of service gets 26 months’ notice

Suzuki employee’s age, tenure and weak re-employment prospects warranted notice greater than normal upper limit: Court
|employmentlawtoday.com|Last Updated: 04/26/2012

A 65-year-old Ontario employee with a long service record has been awarded more than two years’ pay in lieu of notice after his employer paid him only the statutory minimum plus five weeks' salary upon his termination.

Syed Hussain was an assistant warehouse supervisor for Suzuki Canada. He started working for Suzuki in 1975, and by 2011, his 36 years of service made him Suzuki’s longest-serving employee in Canada.

On Feb. 15, 2011, Suzuki terminated Hussain’s employment without warning. The company’s reason for the termination was restructuring in order to deal with economic issues it was experiencing, as well as some concerns with a decreasing quality in Hussain’s performance. Suzuki offered Hussain five weeks’ pay on top of the minimum required by employment standards legislation.

Over the next few months, Hussain applied for 27 jobs, but received only one interview, which was unsuccessful. He sued for wrongful dismissal, claiming that he expected to retire with Suzuki.

The Ontario Superior Court of Justice found Hussain was entitled to a much larger period of notice than what Suzuki gave him. Since he was 65 and had such a lengthy term of service with Suzuki, Hussain should be given a reasonable length of time to recover from the shock that he wouldn’t be retiring with his long-time employer.

The court also found the evidence showed how difficult it was for someone Hussain’s age to find comparable work. The court noted that 24 months was usually the maximum range for wrongful dismissal damages, but found that the combination of Hussain’s age, length of service and poor job prospects created “exceptional circumstances” that warranted a larger notice period.

The court found 26 months was an appropriate period of notice. Though the reasonable notice period had not yet elapsed when the court reached its decision and Hussain was still obligated to mitigate his damages going forward, the court found Hussain’s chance at re-employment was only one per cent. As a result, it reduced the damages by only two weeks as a contingency on Hussain finding another job. Suzuki was left with an obligation to pay Hussain 25.5 months’ salary, benefits and bonuses in lieu of reasonable notice. Suzuki was also ordered to pay almost $20,000 in interest and costs.

“At 65 years of age, it cannot be seriously debated that (Hussain) is in the twilight if not at the end of his working years and that, because of his age, his chances of employment in a similar or even a related industry are remote,” said the court.

For more information see:

Hussain v. Suzuki Canada Ltd.

, 2011 CarswellOnt 12251 (Ont. S.C.J.).

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