According to recent case law, employment professionals might argue that terminating someone's employment during the COVID-19 pandemic will automatically serve to extend the amount of notice that employee is entitled to. The latest such decision in Miller v. Luminultra Technologies Ltd, 2022 NBQB 060 by Justice Morrison concludes this might be the case, but employees and employers should be careful not to jump to conclusions about the reason that judges may extend a notice period, specifically during the COVID-19 pandemic.
The pandemic has impacted the labour market – for better or worse in different circumstances. In those cases where it has made a negative impact on the availability of alternate employment, employees might see notice periods extended accordingly. The Miller v. Luminultra Technologies case is one such example.
Facts of the Case
The plaintiff was a 55-year-old Marketing Manager with six (6) years of service. Her employment was terminated just two (2) months into the COVID-19 pandemic.
Decision
Justice Morrison awarded the plaintiff ten (10) months of notice.
The extended notice period was justified, in part, by the precarious labour market created by the initial stages of the pandemic. Justice Morrison stated the following in coming to their decision:
"In my view, the pandemic and its impact on the labor market is merely an extension of one of the factors the Court is directed by Bardal to consider: availability of alternative employment... termination at the point in the pandemic when the Plaintiff was terminated would tend to "tilt" the reasonable notice towards a longer range."
It is troubling, however, that Justice Morrison extended the notice period on that basis but also conceded there was no evidence of the specific impact of the pandemic on the plaintiff or the job sector in which she was seeking employment. However, it was concluded that there was "little doubt" the pandemic and association shutdowns would have had an impact on her ability to find new employment.
It should also be noted that the plaintiff's age, being over 50, was taken into consideration by Justice Morrison in calculating the plaintiff's notice period, which would often serve to extend it. The amount this factor may have extended notice by was not specifically set out in the decision.
Conclusion
The fact that someone is or was terminated during the COVID-19 pandemic does not necessarily lead to the conclusion that their notice period must automatically to be extended. The fact of the pandemic lends itself as evidence of one of the Bardal considerations which is "availability of alternate employment". If a specific job market has not been negatively impacted by the pandemic then it should not be available for the employee to make a successful argument that a notice period should be extended to reflect a hardship they are not facing. As the labour market heats up and employers continue to face labour shortages in some industries, we may not have to wait long to find out how these factors might impact such notice periods.
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