Case Law Update: Covid-19 Related Bumps to Notice Entitlements Require Evidence

A recent Ontario decision has provided further guidance about the impact that the COVID-19 pandemic may have on the reasonable notice period owed to dismissed employees. The most recent decision, Marazzato v. Dell Canada Inc., confirms that employees seeking a longer period of notice owing to the pandemic’s impact on the labour market must provide actual evidence of any alleged “economic downturn” caused by the pandemic.

In this case, the court was asked to consider the impact of the alleged economic downturn caused by the COVID-19 pandemic.   The court declined to give weight to the pandemic in assessing reasonable notice based on the lack of evidence put forth by the employee, who was unable to clearly demonstrate how the pandemic affected his ability to obtain alternative employment.

Without actual evidence, the court said that it was not appropriate to speculate about the impact of the pandemic: The court went on to note that the employee’s skill set may actually have become more desirable during the pandemic, given the increased reliance on computers for access to the internet and remote practices. In the result, the court found 18 months to be the proper notice period.

Takeaway:

The court’s decision in Marazzato is another positive development for employers who have had to make difficult decisions during the pandemic. It demonstrates that dismissed employees must tender actual evidence of how the pandemic has impacted their job searches, and will not be able to rely upon a general economic downturn in order to receive an enhanced notice period. The court’s reasoning also reinforces the “balanced approach” that favour the pandemic as just one factor used to determine reasonable notice periods, rather than dominating the analysis.

For employers providing Essential Services this is great news.  During the pandemic we’ve seen employee counsel uniformly claim an increase in notice entitlements to reflect the pandemic, however, for Essential Services providers such claims are for the most part without merit due to labour shortages amongst Essential Services providers, even at the leadership level.

Therefore, if you’re dealing with claims from employees who have been laid off, let go, or even in dismissal grievances, it will be important to reference these helpful case law developments and be sure to reinforce mitigation the ease with which workers in essential services sectors can mitigate, as a legitimate basis for reducing claims to notice.