Master and servant — Dismissal without cause — Notice of dismissal — What constitutes reasonable notice.
This was a motion for a determination of what was a reasonable notice of termination of employment without just cause. The 44-year-old plaintiff was in middle management at the time and had been employed for over six years. His salary was $60,638 yearly plus a discretionary bonus equal to 10 per cent of his salary. The employer also offered a Profit Sharing Plan with discretionary contribution up to five per cent of his salary. He was terminated due to corporate restructure.
| HELD: | An appropriate notice period was ten months. |
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Loretta P. Merritt, for the plaintiff. Robert J. Nobili, for the defendant. |
¶ 1 ROSENBERG J. (orally):— This is a motion for determination before trial of the following question of law:
What is reasonable notice of the termination of the Plaintiff's employment without just cause? |
¶ 2 I must commend both counsel in this matter for putting their clients' interests ahead of their own in that they have found a less expensive way of resolving the differences between their clients. They have agreed upon the facts and the agreed statement of facts provides:
| 1. | The Plaintiff, Robert Douglas Slater ("Mr. Slater"), is an individual residing [sic] the City of Scarborough, in the Municipality of Metropolitan [sic], in the Province of Ontario. |
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| 2. | Mr. Slater is forty-four (44) years of age. |
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| 3. | Mr. Slater began working for Reebok on or about October 19, 1987. |
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| 4. | In his last held position as Distribution Centre Manager, Middle Management, Mr. Slater supervised up to twenty (20) full-time staff and an additional ten (10) staff during busy seasons. |
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| 5. | Mr. Slater's compensation consisted of a salary of $60,638.00 per annum, plus discretionary bonus equal to ten (10) per cent of said salary. In addition, Reebok offered an employee Deferred Profit Sharing Plan with discretionary contribution up to five per cent (5%) of said salary. However, by the terms of that Plan, an employee to be entitled must have been employed continuously for the whole year beginning on June 1st of one year and ending on June 30th of the following year. |
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| 6. | On or about January 11, 1994, Reebok terminated Mr. Slater's employment due to corporate restructuring. |
¶ 3 Counsel have advised that they have found no cases where a similar means has been adopted to determine a wrongful dismissal claim. They have advised me that, upon the court determining the appropriate number of months notice, that they can work out the figures by crediting monies already paid, crediting monies earned during the notice period and calculating such things a pre-judgment interest. I find this commendable as well.
¶ 4 In the case book of the plaintiff, there are three database types of reports that were referred to: Barry Fisher: search - Wrongful Dismissal Database, November 29, 1994; David Harris: Wrongful Dismissal 1994 Damages pp. 4-38 to 4-41; and Ellen Mole: Wrongful Dismissal Practice Manual 1994 Charts of Reasonable Notice Periods - Middle Management, pp. D:1 to D:14. Counsel have asked that I comment on the use of this type of database by the courts and I have no hesitation in saying they are most helpful. The usual practice of the employee's counsel showing extreme cases of high notice period and the employer's counsel showing cases of extremely short notice is not to be encouraged. An independent database of the kind used by the plaintiff's counsel in this case is much more helpful in that a survey shows the high and low and allows the court to have a clearer picture of the average of similar cases.
¶ 5 Accordingly, in my review of the material put before me, I have placed more weight on the databases than the seven cases referred to by counsel for both sides. In my view, the average and appropriate notice period, taking into account all of the material put before me, is ten months and, accordingly, I so find in response to the notice of motion.
¶ 6 The plaintiff has succeeded to a greater extent than under the offer to settle and is entitled to solicitor and client costs fixed at $3,800 including disbursements and G.S.T.
ROSENBERG J.
QL Update: 941221
qp/d/tjm/DRS/DRS