Recently the
Importantly, the Judge recognized the 24-month cap as reasonable in most circumstances but noted there are "exceptional circumstances" that support the Court extending the notice period before even considering the impact of Covid-19 and the consequential impact of the widespread shutdown of the economy. Covid by itself was not sufficient to extend the notice period but was recognized as a factor along with the traditional common law criteria of length of service, age, and the inability of the employee to mitigate his damages despite applying for 122 jobs and receiving not one interview. In this case, the Court extended the notice period by two months upon a consideration of the usual factors and then added a further month recognizing the impact of Covid on the ability to seek alternate employment for a total of 27 months.
When a long-term employee is discharged without cause, the employer is well advised to consider whether exceptional circumstances exist when applying the traditional considerations in determining the appropriate notice period. The often cited "cap" of 24 months remains in place, but when exceptional circumstances do exist, the court will not be reluctant to increase the notice periods.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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