’Twas the night before Christmas, when all through the office
All the employees were working, including the bosses;
Year-end reports were finished and submitted with care,
In hopes that vacation time soon would be here.
When out in the hallway there arose such a clatter
I sprang from my office to see what was the matter;
A manager came and dismissed me in a snap,
I filed a complaint which resulted in a court scrap.
Now age! Now position! Now length of service matters!
But so too does the timing of the dismissal, and bad faith chatter;
Off to the court! For a judge to make the call!
Now dash away, dash away, dash away all.
But I heard the court exclaim, as I drove out of sight –
“Additional damages as a result of manager not acting quite right!”
December dismissals happen for a number of reasons, but it is important for employers to understand that the dismissal of an employee in the holiday season may create additional issues in wrongful dismissal cases.
Unless there is a termination clause in the employment contract, the amount of notice or pay in lieu of notice to which a dismissed employee is entitled will depend on several factors including the employee’s age, position and length of service, among other things. In broad terms, the overall goal in considering these factors is to estimate the time needed by the dismissed employee to find a new, similar job.
The question then becomes – does the timing of the dismissal play a role in the calculation of wrongful dismissal damages?
In one case, Black v. Robinson, the Court held that it can. In that case, the Ontario employer decided to hold back three weeks of wages when it dismissed an employee on December 14 claiming that the employee owed the monies to the company. The Court called the company’s actions an “unconscionable decision made shortly before the holiday season” and awarded two extra months’ pay to the employee on top of her 12-month notice award.
Even if there is no bad faith in the manner of dismissal, December dismissals may lead to a longer notice period simply because fewer employers are actively recruiting in December.
Another consideration is the potential for a loss of a year-end bonus. In determining whether bonus amounts should be included in a damages award, contractual language will be important. In this assessment, Canadian Courts consider what the wrongfully dismissed employee would have otherwise earned had they been given reasonable notice of the termination. If a bonus would have been paid during the notice period, an employee may well be entitled to it.
Overall, December or not, employers should be fair, honest and compassionate in their handling of dismissals. If an employer acts maliciously in firing an employee during the holiday season, this could provide the basis for a bad faith and/or punitive damages award against the employer, over and above any wrongful dismissal damages. As such, employers must be conscious of the timing of their decision, whether it be during any period of industry slowdown or during the holiday season, and the risk that the timing of the dismissal could negatively impact the employee’s search for re-employment.
Merry Christmas to all, and to all a good-night!
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.
This article also appeared in Bar Notes, a publication of the Canadian Bar Association – Saskatchewan.