Employment law has been criticized in Ontario for producing inconsistent case law in situations of termination without cause where the employee has worked for one year or less. In such situations, despite the brief employment period, terminated employees have found themselves getting a notice period that at times approaches or, on rare occasions, even surpasses their length of service. This article discusses how the courts determine the appropriate notice period in these circumstances and illustrates this analysis with a recent case out of the Ontario Superior Court of Justice: Grimaldi v. CF+D Custom Fireplace Design Inc., 2023 ONSC 6708.
Factors Determining Common Law Notice
The notice period is how much notice an employee is entitled to for the termination of their employment under common law. A court’s analysis in determining the reasonable notice period begins by applying this test, which is known as the Bardal factors:
- the character of the employment;
- the length of service of the employee;
- the age of the employee; and
- the availability of similar employment, with regard to the employee’s experience, training, and qualifications.
These factors are non-exhaustive. The court will consider anything it determines to be relevant, such as the impact of the COVID-19 pandemic on availability of similar employment, termination while the person is on maternity leave, etc. This is why a strict formula is inappropriate to determine an employee’s fair notice period: the factors that are considered might be different in different cases, and are endlessly variable. The key principle courts follow is that the Employment Standards Act is law that is intended to protect the interests of employees. This is because employees traditionally have less bargaining power than their employer. Thus, where an employment contract can be interpreted in multiple different ways, the courts will “prefer the interpretation that gives the greater benefit to the employee.”
Grimaldi v. CF+D Custom Fireplace Design Inc., 2023 ONSC 6708
A recent case from the Ontario Superior Court of Justice shows how these factors can be applied to a case involving termination with under one year of service: Grimaldi v. CF+D Custom Fireplace Design Inc. Applying the Bardal factors, the Court found the following:
- Character of employment: the employee, Mr. Grimaldi, was a senior project manager and reported directly to the owner of the company. He supervised five to seven employees and was the highest paid employee at the time. This senior, supervisory position suggested a longer notice period.
- Length of Service: Grimaldi was terminated after he had been employed for four months and 23 days. This short tenure suggested a shorter notice period.
- Age: Grimaldi was 50 years old when he was terminated. This higher age suggested a longer notice period.
- Availability of Similar Employment: Despite his best efforts, Mr. Grimaldi had trouble getting employment for a year following his termination. The Court found that he was also in a specialized position for which it is difficult to find comparable employment. Further, the short employment term likely made it more challenging for Mr. Grimaldi to obtain alternate employment. These elements suggested a longer notice period.
Ultimately, the Court awarded Mr. Grimaldi 5 months and two weeks of notice, as well as benefits and a car allowance for that same period. This exceeded his tenure of 4 months and 23 days. His short length of service was the only Bardal factor that militated towards a shorter notice period. However, it was applied to the facts of this case to also justify a longer notice period, as employers could be wary of hiring someone who was let go so quickly after being hired.
It can be difficult to understand how someone who worked for under 5 months could get 5 months and 2 weeks of notice. Many employers and employees expect that the notice calculation will simply be some function of years worked, meaning that those who worked for under a year would be entitled to very little. In reality, each situation is unique, and one must look at the context and relevant factors of each employee’s employment to understand the resulting notice each employee receives. Length of service is only one factor and doesn’t nearly tell the whole story about an individual’s employment and proper notice entitlement. Even when an employee has worked for less than one year, the Court may award the employee with more than one month of notice or pay in lieu of notice. Employers can reduce the chance of a wrongful dismissal claim by recognizing this contextual approach when determining how much notice or pay in lieu of notice to offer an employee who is dismissed without cause. Employers must remember that in situations of employment for under one year, the facts may lead to them paying for much more than 2 weeks’ notice.
Our team at Walker Law Professional Corporation have experience in employment matters and can assist during an employee’s termination. Contact us for a consultation today!
 S.O. 2000, c. 41.
 Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158, 134 O.R. (3d) 481 at para 28.