In Dufour v Ricky’s Family Restaurants Ltd., FDF Brandz Inc., Humpty’s Family Restaurants and Humpty’s Restaurants International Inc., 2026 ABCJ 105 (Shannon, J), a 65 year old server was awarded 11 months’ severance pay.
This case is generally a win for employees, because it is a fairly long severance period for this job and years of service. Not the highest, but a bit higher than average.
Facts
The following were the pertinent facts summarized by the ABCJ:
- The plaintiff employee Mary Dufour was employed at a Calgary Humpty’s restaurant for about 9 years and 8 months as a server and cashier. Her position did not involve general managerial activity
- The employee did not have a written employment contract
- The Humpty’s location she worked at was closing its doors due to an expiry of their lease. The staff was advised their employments would be ending about 5 weeks before their last day
- The employee was 65 years old at the date of her termination without cause
- The employee was not offered work at an alternative location
- After dismissal, the employee looked for work primarily the “old fashioned way” with hand-delivered resumes, but with some online applications
- Some of the employee’s evidence of job hunt included a search journal indicating about 50 jobs she applied for after dismissal. The evidence was “somewhat rudimentary and poorly documented” on this point
- She did not secure a job in the reasonable notice period
- The employee was eligible for CPP and Old Age Security and was receiving it in the notice period
Analysis / Conclusion
The Court conducted a reasonable notice analysis to determine the severance entitlements of the wrongfully dismissed employee.
The Court noted that those over 65 years old are “not as seriously exposed to the adverse results of unemployment as those under that age”, because social security and pension schemes often become available around this age. However, the Court acknowledged that many older people still need additional income. The Court found that the receipt by the employee of these amounts would not diminish her claim for damages.
The Court considered past awards with similar circumstances and awarded reasonable notice of 11 months to the employee. A major factor supporting this notice period was the availability of employment for a 65 year old “near retired” employee.
Regarding mitigation efforts, the Court considered her job hunt after termination of employment. The Court found that for a “relatively unskilled and relatively computer and email illiterate” 65 year old, the employee had made “commercially reasonable efforts” to mitigate her losses. There was therefore no reduction in her severance damages for “failure to mitigate”.
My Take
There are not a lot of surprises in this decision. The caselaw for someone in a server or cashier would illustrate a fairly broad range of reasonable notice potential. Many cases have found that jobs of this nature result in low notice periods. However, every case is unique.
A key factor was her age – 65 years old. For reasonable notice analysis, age over mid-50’s will generally support an elevated notice period, but over 60 will almost always support one.
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