In Ramos v Hewlett-Packard ( Canada ) ( 2017 ONSC 4413 Justice Ryan Bell found that it was inappropriate for the Defendant to plead in their Defence that they had ” offered the plaintiff a reasonable settlement package”.
She offered two reasons for this :
1) The offer contained in the termination letter was intended to settle the matter and thus was without prejudice even though it did not say that it was without prejudice.
2) ” What constitutes reasonable notice will be an issue for the trial judge to determine, what Hewlett- Packard offered to Ms Ramos is irrelevant.
If the Defendant had actually paid the amount in the offer to the Plaintiff, then the Court would be able to judge whether the notice provided was reasonable. In my reading of thousands of wrongful dismissal cases , it seem that where the employer actually pays what they think reasonable notice is, the Courts’ assessment of reasonable notice is lower than where the employer only pays the ESA minimums and then litigates over the amount of reasonable notice.
In McLeod v 1274458 Ontario Inc ( 2017 ONSC 4073) Hood J . had to determine the notice period for a 48 year old mover making $40K with 18 years service.
In commenting on the relevance of the character of employment the Judge said :
29 The plaintiff had worked as a driver and mover for the defendant for 18 years and was 43 years old when terminated. He had no special training or qualifications. The defendant argues that, because the plaintiff lacks special skills and was not a specialized employee, the notice period should be reduced.
30 When Bardai was decided in 1960, it was to some extent a different work environment than today. The longer notice period for senior management employees or highly skilled and specialized employees and a shorter notice period for lower rank or unspecialized employees as suggested by the defendant may have been appropriate in 1960. If anything, in today’s world and economy, that has changed. Those with skills and specialties change jobs frequently and rapidly. Those without skills and specialties, I believe, find it more difficult to find employment.
He went on to award 12 months notice.