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COVID-19 Extends Notice Period by One Month

Notice Period Extended

By Kyle Burgis

Over the past little while, we have written twice on recent decisions which have considered whether an employee’s notice period should be extended due to the impact of COVID-19 on seeking new employment.

As a recap, the Courts first addressed this question in Yee v. Hudson’s Bay Company where the Court held that since the employee was terminated prior to the start of the pandemic, the effects of the pandemic on the economy and job market at the time of termination had not been contemplated. Therefore, the Court declined to extend the employee’s reasonable notice period due to COVID-19.

Thereafter, the Courts provided further insight into this with the decision of Iriotakis v. Peninsula Employment Services Limited, where the termination of the employee’s employment occurred after the pandemic had already began. Here, the Court declined to extend the notice period in this case given that there was no foreseeability at the time of the termination of the negative impact on the economy and job market.

Notice Period Extended

We now have yet another case on this topic. In Kraft v. Firepower Financial Corp., the employee’s employment was terminated right at the onset of the COVID-19 pandemic. As a result, the employee claimed that the pandemic “seriously impacted on his ability to find new employment.” In distinguishing this matter from the Yee decision referred to above, the Court stated the following:

“[17]           At issue here is the job market and the impact of COVID on that market. The reason that the pandemic was not taken into account in determining the reasonable notice period in Yee is that the employee in that case was terminated in August 2019 – i.e. more than a half year prior to the COVID pandemic – and there was no evidence that the pandemic impacted his job search.

[18]           Here, by contrast, the Plaintiff was terminated during the second week of March 2020, the very same week and just days before the Ontario government declared an emergency. Whatever policy considerations drove the provincial government to implement its emergency orders on one particular day that week and not another are not relevant to the analysis; the point is that the economy was already shutting down and remained closed during the Plaintiff’s inevitably prolonged job search. A global pandemic does not just emerge on the day of the government’s emergency decree.”

Taking this into consideration, the Court determined that the employee’s notice entitlements would be increased by one month. The Court stated “As indicated, there is evidence that the pandemic impacted on the Plaintiff’s ability to secure new employment. In light of that evidence, he deserves to receive at least somewhat above the average notice period. I would peg the figure at 10 months, or one month more than the average for his circumstances during non-pandemic times.”

Given the above decision, the Courts have demonstrated that an employee’s notice entitlements may be extended as a result of the pandemic. However, a valid and enforceable termination clause in the Employment Agreement can limit an employee’s entitlements upon termination to merely those under the Employment Standards Act, 2000, regardless of the impact caused by the pandemic.

At Minken Employment Lawyers, we can review the facts to recommend the best course of action to ensure your legal protection. Should you need legal advice on notice periods or regarding another aspect of employment law in the workplace, we would be glad to help. Contact us today or call us at 905-477-7011 for assistance prior to taking any steps that may expose you to legal liability. At Minken Employment Lawyers, we can review the facts to recommend the best course of action to ensure your legal protection.

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Please note that this article is for informational purposes only and does not constitute legal advice.

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