Lawyer Richard Johnson, Contributor.
As we’ve explained elsewhere in this blog, unless there is a termination clause in her employment contract, the amount of notice or severance a dismissed employee is entitled to depends on several factors, namely:
- The nature of her employment
- Her length of service
- Her age
- The availability of similar employment, having regard to her experience, training and qualifications
The courts (and ideally, employers) consider these elements because, taken together, they are likely to influence how long it will take the employee to find a new job.
An additional factor not listed above that can impact an employee’s job search is when the firing took place. The courts have acknowledged this, and will sometimes look at the timing of dismissal when calculating wrongful dismissal damages, something worth noting as the holiday season is upon us.
As we enter December, the question is: Will a Christmas firing attract additional damages in court?
We know for sure that a sacking during the summer can.
A recent case out of Ontario confirmed that an employee who is dismissed during the summer may be entitled to increased damages if he is negatively affected by the timing of his dismissal. In Fraser v. Canerector Inc., the plaintiff executive was dismissed in June after a relatively short period of employment (34 months). The Ontario Superior Court awarded him additional damages in light of “the potential negative impact of the summer break” on his job prospects, explaining that:
- it was quite foreseeable that hiring decisions at his level might have needed to be delayed somewhat due to the summer months in order to account for vacation schedules of key decision-makers. While his term of service might normally suggest a relatively shorter period of notice, timing plays a bigger role where notice is short…
But what about getting discharged in December?
The reasoning from the Fraser case would seem to apply equally strongly where a firing occurs close to Christmas. As the end of the year approaches, we see many industries (and individual businesses) experience a slowdown, with employees at all levels of an organization taking time off to be with their families, or simply for a well-deserved break. One result of such a slowdown is that many employers put a freeze on hiring until well into the new year.
From our perspective, the potential is high for a dismissed employee to face job search challenges during the December holiday season due to the absence of “key decision-makers” within a prospective employer.
While we aren’t aware of any reported BC cases where a Christmas firing attracted increased damages, we have seen at least one Ontario judge willing to punish an employer for a December dismissal. In Zesta Engineering Ltd. v. Cloutier , the Ontario Superior Court awarded the employee bad faith damages equal to $75,000 as a result of numerous instances of bad employer behavior, including its dismissal of the employee five days before Christmas.
1. Employers who fire during any period of industry slowdown, during summer vacation, year-end holidays, or otherwise, are at risk of having to pay additional wrongful dismissal damages if the timing of dismissal could negatively impact the employee’s search for re-employment.
2. If an employer acts maliciously in firing an employee during the holiday season, this could provide a basis for bad faith and/or punitive damages award against the employer, over and above any wrongful dismissal damages.
3. If a dismissed employee’s compensation package includes a non-discretionary year-end bonus, this could also influence the court’s damages calculation where the employee was fired during the holidays and before the bonus payout.
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