The Character of the Employment

The Character of the Employment

June 1, 2021

By Brian Babcock

The criteria for determining the appropriate notice period for an employee dismissed without cause are well-established as including length of service; the age of the employee; the availability of similar employment; and the “character of the employment”.

We see many cases in which length of service is the focus. It is also clear that older employees nearing a typical retirement age will receive more notice. The criteria of availability of employment and character of employment are less often the subject of comment.

What the cases tell us about “character of employment” is that employees with so-called senior positions receive more notice than employees with less responsible jobs who have similar length of service. What the cases do not sort out clearly is just what positions receive the extra compensation.

That makes George v. Laurentian Bank Securities Inc. an interesting example.

In this case, the employee was a recent hire, employed as “Vice President Equity Trading” for only a few months. With that length of service, he had to come up with another reason if he expected longer notice. His lawyer argued that “senior management” are generally entitled to a minimum of twelve months notice.

The judge did not decide whether that argument is correct, because she decided that Mr. George was not “senior management”.  Despite the “Vice President” title, he was essentially just a stockbroker. He:

  • did not supervise anybody
  • was not responsible for strategic decision making
  • was three levels below the executive team level

In addition, all employees in the Equity Trading division held the title of “Vice President”, as a marketing device.

Now, knowing that courts typically favour employees in dismissal cases, you might think that the Bank would be stuck with their own decision to engage in puffery about Mr. George’s position. But this was not the case.

It is the actual job duties, not just the title, which determine the character of the employment. In looking at this, the judge decided that Mr. George received no special credit for that character of employment.

He did however, receive some enhancement due to his age, and in spite of his brief length of service, was awarded two months notice – much less than the twelve months he hoped for, but significantly more than the three weeks offered by the Bank.

This case illustrates that calculating reasonable notice is a subtle art, and one which requires expertise. Employers who do not have a human resource professional on staff, might save money in the long run by consulting an experienced employment lawyer. Employees are always well advised to get legal advice before accepting any offer of reasonable notice or pay in lieu of notice.