Employers cannot be expected to predict how an employee’s health may be affected by a dismissal, but employers should account for an employee’s health condition when determining the appropriate amount of notice due upon dismissal. Employment Foresight’s data show that, holding all else equal, courts award longer notice periods if the employee suffers from an illness or other medical reason that makes it difficult to find a similar position after termination. The additional bump to the notice period may be significant. The magnitude of the increase depends on a number of different factors.
Employment Foresight’s Reasonable Notice Classifier Takes Employee Health Into Account
The four Bardal factors guide the determination of the length of notice due to an employee upon termination. The employee’s age and length of service are relatively easy to quantify. But the character of service and availability of similar employment are more difficult to capture. These factors depend on the specific context of each case and require a nuanced balancing of facts. An illness or medical condition may influence the availability of similar employment and influence the overall outcome of a reasonable notice question.Employment Foresight’s Reasonable Notice Classifier takes into account over 20 relevant factors that have been found to influence judicial decision-making in reasonable notice cases. Our methodology converts unstructured data from thousands of court decisions into structured data. We leverage machine-learning algorithms to predict how a court would rule in new circumstances based on the hidden patterns found in the data. Employment Foresight’s Reasonable Notice Classifier is highly accurate. To illustrate the power of the Classifier, consider the following case where illness impacted the reasonable notice award.
Employee Awarded Four Additional Months Due to Epilepsy
In Osada v. Recyclenet Corp., 2015 ONSC 4717 (“Osadca”), Andrew Osadca, 34, had worked in sales for Recyclenet for 7.5 years. His commissions depended on a book of business built over time. Mr. Osadca was an epileptic. His condition meant that he did not have a driver’s license and needed to work from home. Prior to his termination, Mr. Osadca’s understanding was that he was meeting performance expectations and was therefore secure in his position.
How much notice would a court award in this case? If you take a simple rule of thumb approach based on years of service, Mr. Osadca would receive no more than 7.5 months (and perhaps as little as 3.5 months). Looking at precedents from Ontario where the plaintiff was 30 to 35 years old and had 5 to 10 years of service, courts awarded notice periods ranging from 4 months to 10 months.
Employment Foresight predicted a notice period of 10-11 months. Justice Sanderson awarded 12 months.
Employment Foresight predicted that the notice period would be much higher than the rule of thumb. Further, it also suggested that the notice period would be greater than previous cases where employees appeared analogous to Mr. Osadca based on easily quantifiable Bardal factors. Employment Foresight gave a prediction that fell within one month of the actual notice period awarded by the court.
The employee’s medical condition made it difficult to find a comparable position. In light of Mr. Osadca’s employment history and neurological disorder, Justice Sanderson added 4 months to the period of reasonable notice to which Mr. Osadca would otherwise be entitled at dismissal. Were it not for the illness and difficulty in finding a comparable position, the reasonable notice period would have been 8 months. Mr. Osadca received 12 months. Justice Sanderson stated:“[T]he Defendants knew that it would be difficult for someone with the Plaintiff's experience and qualifications to find a similar position and with similar pay, especially since he was an epileptic who at the time of the termination was without a driver's licence and needed to work from home. The Defendants knew that post university he had never worked for anyone else... [I]n all the circumstances here, I find that the period of reasonable notice should be 12 months.”Does the illness or health condition have a significant impact on the ability to find employment? The health condition, physical or mental, must have a significant impact on the employee’s ability to find other employment in order to justify a longer reasonable notice award. In Keays v. Honda Canada Inc., 2008 SCC 39, for example, an employee suffered from Chronic Fatigue Syndrome. As in Oscada, Mr. Keays’s health was such that it significantly impacted the likelihood of finding similar employment.
The Growing Importance of Health Awareness in the Workplace
More than ever, employers have a stake in being cognizant of mental and physical health of employees. In the most recent Canadian Survey on Disability (CSD), 49% of persons aged between 25 and 64 years old with disabilities reported that they were employed. The issue is of increasing importance with regards to mental health. In 2011, 30% of disability claims in Canada related to mental health problems.
 This proportion continues to grow. In the Premier’s September 2016 mandate letter to the Minister of Labour, emphasis was placed on expanding mental health protections for workers in Ontario as well as improving the prevention and acknowledgment of workplace mental health issues.Employers need to be aware of how physical and mental health issues impact all aspects of the employment relationship. This includes dismissal. Employment Foresight helps employers better understand how mental and physical health impacts the length of a notice period due to workers upon dismissal.
Notice periods can be greatly impacted by whether a worker suffers from an illness or other medical reason.
In a recent comparison of predictive tools, we found that Employment Foresight was 90% accurate and with a narrow range of just over 1 month on average. Other predictive tools were less accurate or less precise as they failed to take into account all relevant factors.
 Sairanen, S., Matzanka, D., & Smeall, D. (2011). The business case: Collaborating to help employees maintain their mental well-being. Healthcare Papers, 11, 78-84.