Are Older Employees Entitled to More Severance?

Are older employees entitled to more severance?

While it is often repeated by Ontario employment lawyers that the ‘rough upper limit’ for notice periods is 24 months, baring “exceptional circumstances” (see e.g. Lowndes v. Summit Ford Sales Limited, 2011 ONCA 469), the case of Hussain v. Suzuki (2011), 209 A.C.W.S. (3d) 101 (ON SC) demonstrates that the employee’s advanced age can qualify as “exceptional circumstances” warranting a greater amount of reasonable notice.

Facts

The plaintiff employee, Mr. Hussain was nearly 65 years old at the time of his termination. He had almost 36 years of service with Suzuki and had no inkling that he was to be fired. His last position held with Suzuki was Assistant Warehouse Supervisor; a supervisory position. He was responsible for supervising 11 people. It was agreed that Mr. Hussain’s job was a very important and valuable job.

Decision

In awarding the plaintiff 25.5 months of reasonable notice, the Honourable Justice Lois Roberts (who now sits on the Court of Appeal for Ontario) made the following comments:

At 65 years of age, it cannot be seriously debated that the plaintiff 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.

Commentary

The Hussain case highlights the peril of terminating older employees. It should be well observed that it is often much more difficult for these workers to find new work and, therefore their notice periods need to be greatly increased over that of younger workers.

Takeaways for Employees with Labour Pains

The takeaway for employees with labour pains is that you may be entitled to substantially more notice of the termination of your employment than you may think, especially if you are older in age and have worked for the same employer for a considerable period of time.

If you are an individual looking for assistance with respect to your wrongful dismissal case, contact the professional, experienced and cost-effective employment lawyers at employees at Ottawa's Kelly Santini LLP. We would welcome hearing from you.

Takeaways for Employers with Labour Pains

Employers should know that they have options by which they can terminate an employee’s employment. In this case, the employer had failed to provide the employee with sufficient notice of the termination of his employment and was therefore sued for wrongful dismissal. The employer may have been able to avoid the situation had it done some things different.

If you are an employer and you need to make changes to your workforce, contact the professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP. We would be happy to be of service to your business or organization.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Sean P. Bawden is a partner in Kelly Santini LLP, located in Ottawa, Ontario, Canada. He practices in the areas of employment law and civil litigation. He has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College in Ottawa.