Is it time for fixed notice periods?

Mathematical formula for determining reasonable notice in cases without complicating factors sounds appealing

By Todd Humber

I love reading about employment law. Call me a legal geek, but I’m a voracious consumer of news, blogs, columns — anything I can get my hands on — about legal decisions impacting the workplace.

The behaviour of employees and employers across the country is both fascinating and dumbfounding. Every time I think I’ve seen the worst behaviour possible, an article appears in Canadian Employment Law Today that raises (or, perhaps more appropriately, lowers) the bar for workplace misconduct.

But in all my years of writing, editing and reading about employment law, one question has always flummoxed me: Why isn’t there a simple calculation for common law notice periods?

In this space last year, I wrote about a similar vein — a call out of the United Kingdom for fixed notice periods that would make it easier to fire slackers. The Chartered Institute for Personnel and Development (CIPD), Europe’s largest HR association, came out solidly against the idea, saying it was better to focus efforts on improving managing and leadership skills. I agreed wholeheartedly — simply making it easy to fire slackers doesn’t solve the overall productivity problem.

But the notion of fixed notice periods when terminating a worker without cause remains appealing. It’s also incredibly complicated, which is probably why it hasn’t gained traction — yet.

The Bardal factors — born out of the 1960 ruling of Bardal v. Globe and Mail Ltd. — suggested things to take into account when calculating reasonable notice periods include:

•character of employment

•age of the employee

•length of service

•availability of similar employment in light of the employee’s experience, training and qualifications.

Bardal wasn’t meant to be a comprehensive list, and there are certainly other factors courts take into consideration when calculating an appropriate notice period.

But, for HR professionals, isn’t the idea of punching some numbers into a computer and getting a concrete answer appealing? It’s easy to satisfy one-half of the Bardal factors with a simple formula. Bob has been here for 15 years. He’s 45 years old. What’s the notice period if we want to terminate him without cause?

But character of employment? Availability of similar employment, taking into account experience, training and qualifications? I don’t think there’s an app for that — way too much art and not enough science.

And yet, I have to think both employers and employees would want the certainty of fixed notice periods. Employers would know they didn’t overpay a departing employee, and employees would be confident they got all they were entitled.

Of course, if there are mitigating factors in the termination — such as bad faith conduct or other behaviour that warrants aggravated or punitive damages — the calculation couldn’t apply.

What do you think? Does the idea of creating a mathematical formula to automatically calculate notice periods have merit? Or does the current regime serve employers and employees just fine?

Todd Humber is the managing editor of Canadian HR Reporter, the national journal of human resource management. He can be reached at todd.humber@thomsonreuters.com.

Todd Humber

Todd Humber is the publisher and editor-in-chief of Canadian HR Reporter, the national journal of human resource management. Follow him on Twitter @ToddHumber
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