Gender Bias in the Judicial Assessment of "Reasonable Notice" under Canadian Common Law
Thornicroft, Kenneth W., Labor Law Journal
There is a substantial literature addressing whether a person's gender affects the probability of achieving a successful outcome in a variety of employment related adjudicative forums. In particular, this question has been intensively examined in the context of grievance arbitration although the results have been somewhat inconclusive. For example, a series of studies have shown that arbitrators (and especially male arbitrators) treat female grievants more leniently than otherwise comparable male grievants.1 However, Rodgers and Helburn found that arbitrators systematically favoured male grievants.2 In addition, there are several other studies where gender proved to have no statistically significant impact on arbitral outcomes.3
There have been comparatively fewer studies examining gender effects in non-union adjudicative contexts. The complainant's gender did not affect case outcomes in a study of the non-union adjudication process under section 240 of the Canada Labour Code.4 Similarly, gender was not a significant factor affecting success in an Ontario study concerning workers' compensation appeals.5 However, gender was significantly related to success (but not to ultimate compensation) in adjudications heard by Britain's unfair dismissal employment tribunals during the period from April 1990 to March 199 1.6 In a similar study concerning decisions made by Australian unfair dismissal tribunals during the period 2000 to 2005, male adjudicators systematically favored female employees.7
The British study's authors suggested that women's higher success rates may reflect their relatively stronger cases whereas the Australian study's authors attributed women's success before male adjudicators to a pattern of "paternalism/chivalry" (this thesis has also been advanced by Brian Bemmels; see endnote 1.) The comparably higher success rates of women relative to men may reflect their tendency to pursue employment related litigation only when they perceive themselves to have a strong case.8 In a study that is more directly relevant to the present investigation, women had much higher success rates than men in "just cause" cases litigated in Canadian common law courts during the period from 1980 to 1983.9
In this study, I examine the impact of gender on the judicial assessment of "reasonable notice" in non-union wrongful dismissal cases decided by Canadian appellate courts during the period from 2000 to 2011. 1 find that women apparently do suffer a comparative disadvantage in reasonable notice assessments.
II. The Reasonable Notice Doctrine
Under Canadian common law, employees dismissed without just cause are presumptively entitled to "reasonable notice" of termination. Although employers can lawfully terminate employees without just cause, in such circumstances the employer must provide advance "working notice" of the impending termination. If the employee is summarily terminated without just cause and with no (or insufficient) notice, the employee may file a civil damages claim for what is known as "severance pay in lieu of reasonable notice." The reasonable notice doctrine does not apply to employees employed under fixed-term agreements nor does it apply if the parties have previously negotiated a lawful termination provision.10 Reasonable notice is typically specified in months and can range from very little notice (for short-term, low level employees) to as much as 24 months' notice (which represents a rough upper limit) for older, long-serving senior executives.11 The severance pay calculation simply reflects the notice award multiplied by the value of the pay and benefits that the dismissed employee would have otherwise earned during the notice period less any wages earned through new employment (this latter adjustment is known as "mitigation").
Canadian common law courts are obliged to assess reasonable notice on an individualized case-by-case basis and are mandated to principally consider several criteria known as the "Bardal factors. …