Termination of Older and Long Term Employees – 24 Months Reasonable Notice of Termination

In Stephanie Ozorio v. Canadian Hearing Society, the Ontario Superior Court of Justice concluded that Ms. Ozorio was wrongfully dismissed and was entitled to receive 24 months’ payment of salary and benefits.

The employer, the Canadian Hearing Society, terminated Ms. Ozorio without notice. Ms. Ozorio had worked for the Society for 30 years, was 60 years old and had held the position of “Regional Director” for approximately 11 years.

Upon termination, the Society originally offered a “voluntary separation offer” of $93,000, less than her annual salary, in exchange for a Release. The employee declined the offer and the employer counter-offered with 12 months’ pay and limited contribution to her benefits. The employee refused the second offer and the employer chose to pay Ms. Ozorio her regular salary for the minimal 34 week period for statutory termination and severance pay in accordance with the Employment Standards Act, 2000 (ESA).

On a motion for summary judgment, it was determined that Ms. Ozorio was wrongfully dismissed. Given Ms. Ozorio’s age and likely disadvantage in a competitive labour market, and her comparatively high position within the employer, the Court set the reasonable notice period at 24 months, less the amount already paid by the employer under the ESA.

This decision confirms an ongoing trend by courts to award significantly higher levels of reasonable notice of termination (to a maximum of 24 months) to employees who are long tenured and are aged 60 or older. Courts routinely conclude that these employees will have significant difficulties in finding alternative employment. Since the elimination of mandatory retirement at age 65, these situations arise frequently. Employers should consider taking proactive steps when ending the employment of older employees to assist them in finding employment, such as outplacement services and counselling. Further, where operationally feasible, employers may wish to consider providing periods of working notice to address the higher notice period entitlement.