Over a period of five months, Crown Metal Packaging Canada LP provided Mr. Di Tomaso with five notices of termination, containing four extended termination dates. Each notice was provided only days before the termination of the notice period in each respective notice.
Mr. Di Tomaso was 62 years old and had 33 years service with the company.
The Court of Appeal affirmed a summary judgement decision below, ruling that the cumulative effect of the multiple notices of termination was that Mr. Di Tomaso never received “clear and unequivocal” notice of termination. Further, as the ESA permits only 13 week extensions before fresh notice of termination is required, Crown Metal was given no credit for the periods worked under those equivocal notices. The Court of Appeal also upheld the lower court’s award of 22 months pay in lieu of notice.
This case is a clear warning that employers must be decisive when terminating employees.
If you have operational needs which may necessitate extensions to the notice period, you should strongly consider addressing the employee directly and obtaining agreement to achieve that flexibility, where possible.
One option would be to obtain written agreement (and a signed release) that the employee will receive at least a certain minimum combined working notice and pay in lieu, with a retention bonus for staying on the full period of working notice.
Without agreement, employers must effectively choose between sacrificing the benefits of extended retention of the employee and the risk of additional notice obligations.
