Andrew Vey Interviewed by Canadian HR Reporter
Vey Willetts LLP partner Andrew Vey was recently interviewed by Canadian HR Reporter regarding the reasonable notice entitlements of short-service employees. In an article entitled "Short service is not short notice: What HR gets wrong in dismissing new hires, " Vey unpacked a common misconception among both employers and employees, namely, that a short tenure automatically means a short severance obligation.
The article centres on Ho v. Monk Office Supply Ltd., a recent B.C. Supreme Court decision in which a corporate controller who worked less than three months before being dismissed without cause was awarded four months' notice. As Vey explained, the result is far from unusual:
In my experience, the vast majority of both workers and employers do not understand the fact that you do see disproportionately longer severance periods for short-service employees. We have to have this conversation over and over again… employees and in particular employers can be surprised by how weighty severance awards can be for short service.
Courts continue to apply the longstanding Bardal factors (these being character of employment, length of service, age, and availability of similar work) but for short-service employees, that last factor tends to carry significant weight. Vey pointed to the B.C. Court of Appeal's decision in Saafeld v. Absolute Software Corporation, which set a floor of roughly two to three months' notice for managerial or professional employees with under 18 months of service, given the added difficulty they typically face finding comparable re-employment:
The court leaned into the fact that this worker was out of a job for five months. Even when he accepted a new job, he took a significant pay decrease which the court inferred was demonstrable of the fact that there simply were not available comparable jobs out there for him to secure.
Vey also discussed how "churn" (meaning being dismissed shortly after being hired) can itself work against a departing employee's job search, since it forces them to explain the short tenure to prospective employers. That dynamic, he noted, can justify an even longer notice period.
On the question of whether employers must explain a dismissal, Vey cautioned against reading the court's finding (being that no explanation is legally required) as a strategic green light to stay silent:
Just because you don't have to give an explanation to the employee doesn't necessarily mean you should avoid doing so. What I've seen, time and time again, is that if you leave the question 'Why?' hanging out there, employees will sometimes try to fill in the details themselves.
Leaving that gap unfilled, Vey noted, increases the risk that a dismissed employee will pursue a claim rooted at least partly in hurt feelings or misunderstanding, something a brief, honest, explanation can often help avoid.
Short-service terminations raise real stakes on both sides of the employment relationship. Employers who assume tenure and notice scale in lockstep risk underestimating their severance exposure, while employees let go early in a new role are often unaware of just how substantial their entitlements can be. Whether you are an employer looking to calculate reasonable notice and draft enforceable termination clauses, or an employee navigating a recent dismissal, our experienced employment lawyers are available to help guide you forward.
Vey Willetts LLP is an Ottawa-based employment and labour law boutique that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in the National Capital Region and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca.