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Notice period for short-term employees: A dose of reality

Alberta court ruling welcome news for employers

By Stuart Rudner

In the past, I have advised employers not to subscribe to any supposed rule of thumb, such as the popular notion employees are entitled to one month of notice for every year of service.

I have also cautioned employers against assuming employees with very short tenure will only receive minimal notice or pay in lieu thereof. In recent years, there have been a number of examples of short-term employees receiving disproportionally lengthy notice periods. For example, a manager with six months’ service receiving nine months’ notice at the conclusion of a wrongful dismissal trial.

In some cases, the lengthy notice period was the result of the fact the employee had been induced to leave secure employment elsewhere, which the courts will take into consideration when assessing the period of reasonable notice.

However, in other cases, inducement was not a factor, and yet the short-term employees received what many employers saw as inappropriately long notice periods. For those employers, the recent decision of the Provincial Court in Alberta in Nazir v. 116847 Alta. Ltd. (CNC components) will be welcome news.

In the Nazir case, the plaintiff was a 48-year-old labourer. He commenced employment with the defendant in October 2008 and was dismissed without cause at the beginning of February 2009. The court found the period of employment was about three-and-a-half months. He was provided with what the parties described as a “severance” payment equivalent to one weeks’ pay, in accordance with the applicable employment standards legislation. He sued for more.

The court acknowledged the notice provisions in the legislation are minimum statutory requirements. The plaintiff submitted a number of cases in support of his position seeking additional notice, but the court distinguished each of them on the basis the plaintiffs in those cases had been induced to leave previous employment or, in one case, had 10 months of service as opposed to three-and-a-half.

The court found there was no evidence of a lack of work in the market, no significant evidence regarding the plaintiff’s job search, and no evidence of his age being a hindrance to finding new work. In light of the usual factors, the court concluded one weeks’ pay in lieu of notice was reasonable in the circumstances.

While I would caution employers against relying upon this decision in order to provide only the statutory minimum amount of notice to short-term employees, the case is a welcome shift from previous cases that had awarded disproportionally lengthy notice periods to employees with very short tenure.

Stuart Rudner is a partner with Miller Thomson LLP in Ontario, specializing in employment law. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at (905) 415-6767 or srudner@millerthomson.com. You can also follow him on Twitter @CanadianHRLaw, join his Canadian Employment Law Group on LinkedIn, and connect with him on Google+.

Stuart Rudner

Stuart Rudner, Employment Lawyer and MediatorStuart Rudner is the founder of Rudner Law (RudnerLaw.ca), a firm specializing in Employment Law and Mediation. He can be reached at stuart@rudnerlaw.ca, (416) 864-8500 or (905) 209-6999, and you can follow on Twitter @RudnerLaw.
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