Breaking the Traditional Cap: Employee awarded 30 Month’s Notice

By Matt Lalande in Employment Law, Wrongful Dismissal on November 03, 2023

In the recent legal decision of John Lynch versus Avaya Canada Corporation, the Ontario Court of Appeal upheld a significant decision where the plaintiff, John Lynch, was awarded a 30-month notice period for wrongful dismissal, which notably exceeds the traditional cap of 24 months. This extension of the notice period is a focal point of the case, highlighting the court’s recognition of exceptional circumstances that warranted a longer notice period than is typically granted.

The Employer‘s Arguments During Appeal

Avaya, the appellant, contested the motion judge’s ruling on three fronts:

1. Excessive Notice Period: Avaya argued that the 30-month notice was beyond what Lynch had initially claimed, suggesting an error in the award.
2. Misapplication of Bardal Factors: They contended that the motion judge incorrectly applied the factors from Bardal v. The Globe & Mail Ltd., which guide the determination of reasonable notice.
3. Mitigation of Damages: Avaya believed Lynch did not take reasonable steps to mitigate his damages, which should have reduced the notice period.

Conversely, Lynch, the respondent, maintained that the notice period was justified due to his unique employment circumstances.

Exceptional Circumstances Justifying 30-Month Notice:
The motion judge’s decision to award a 30-month notice period was based on a comprehensive evaluation of Lynch’s unique employment situation. The Court of Appeal scrutinized Avaya’s challenge to this award and provided a detailed rationale for maintaining the extended notice period:

1. Long Tenure and Specialized Role: Lynch’s almost four-decade-long tenure with Avaya and its predecessor, coupled with his specialized engineering role, were critical factors. His position involved developing patents annually, indicating a high level of expertise and contribution to the company.
2. Unique Skills and Job Market: The court noted Lynch’s unique and specialized skills, which were highly tailored to his role at Avaya, potentially limiting his immediate employment opportunities elsewhere.
3. Age and Local Job Market: At nearly 64 years of age and with employment prospects in his specialized field being scarce in his local area of Belleville, the court recognized that Lynch faced a challenging job market, which justified a longer notice period.

Court’s Stance on Traditional Notice Cap:
The Court of Appeal’s decision reinforces the notion that while there is generally a 24-month cap on notice periods, this is not absolute. Exceptional circumstances, particularly when considering the character of employment, length of service, age of the employee, and availability of similar employment, can justify exceeding this cap.

Conclusion:
The Court of Appeal’s dismissal of Avaya’s appeal confirms the motion judge’s findings and underscores the court’s willingness to consider the specific and individual circumstances of a case when determining the appropriate notice period for wrongful dismissal. The decision to uphold a 30-month notice period in this case sets a precedent for recognizing the nuances in employment cases that may demand deviation from the standard practice.

This summary emphasizes the court’s rationale behind granting a notice period beyond the standard 24 months, highlighting the exceptional circumstances that can influence such a decision in employment law.

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