By Sheryl Smolkin
Read this article and comments at Moneyville.ca
The Ontario Court of Appeal recently confirmed an award of 22 months pay to a laid off mechanic, rejecting arguments that there is an upper limit of paid notice for wrongfully dismissed unskilled workers.
Antonio Di Tomaso was employed by Crown Metal Packaging Canada LP for over 33 years as a mechanic and press maintainer, which involved setting up the line, minor repair work and assisting the millwright with mechanical work on machines. The company closed the facility where he worked in February, 2010.
He was first informed his services were no longer required in September 2009, but his employment was extended in five separate notices with four different termination dates.
When Di Tomaso, 62, was finally let go on February 26, 2010, Crown Metal gave him the six months of severance required by law, accumulated vacation pay and benefits to the end of March.
Di Tomaso brought an action for wrongful dismissal and Crown Metal claimed the first notice of termination was valid so his extended employment to the end of February was really “working notice.” The company also argued he was entitled to a maximum of 12 months paid notice because he was a low level worker.
Ontario Superior Court Justice Beth Allen ruled that only the final letter provided a clear termination date. Therefore, there was no period of working notice, and Crown Metal was not entitled to a reduction in the statutory requirement.
Justice Allen also rejected Crown Metal’s suggestion that as a result of decisions in earlier court cases Di Tomaso’s entitlement to notice was capped at 12 months. He was awarded 22 months of pay, minus the six months received, in lieu of notice.
The Ontario Court of Appeal agreed with the lower court decision, noting recent jurisprudence suggests that the nature of a dismissed employee’s job is currently of declining relative importance.
Justice MacPherson commented: “Particularly in today’s world, it cannot be taken for granted that lower level employees deserve less notice because it is easier for them to find a new job….In fact, Di Tomaso made unsuccessful enquiries or applications to 22 companies in the area.”
Therefore Crown Metal’s appeal was dismissed, and Di Tomaso was awarded $14,000 for costs of the appeal in addition to the previous award of 22 months pay.