Alberta Employment Standards Code renders termination date 'of no effect' if employment continues
A pharmacy worker was entitled to a fresh notice of termination once her employment continued past the original termination date, the Alberta Labour Relations Board has ruled.
The worker was employed as a pharmacy assistant with Pallo Pharmacy in Edmonton since December 2007.
On June 22, 2020, Pallo gave the worker notice of termination effective Nov. 20. The owners intended to close the pharmacy and retire as of that date, after which the worker would receive a record of employment and all outstanding wages.
However, later in 2020, Pallo reached an agreement to sell its assets and business to a new owner who would take over the pharmacy. The closing date of the sale was Oct. 30, and the purchase agreement included a provision requiring Pallo to terminate the employment of all employees and pay them their entitlements by that date. Pallo had to provide written notice and the new owner would not assume or offer re-employment to any of the existing staff.
An employee on medical leave who was terminated must receive pay in lieu of notice because he was unable to work, an Ontario court ruled.
New termination date
Pallo provided the worker with a certificate stating that all employees had been given proper notice of termination of their employment effective Oct. 30. However, the pharmacy had not given a new notice of termination with that effective date.
When Oct. 30 rolled around, the new owner continued to employ the worker because of changes in employment during the pandemic. The worker and others continued to work at the pharmacy beyond the original termination date of Nov. 20.
On May 3, 2021, the new owner terminated the worker’s employment with a notice stating that the previous owner had provided written notice of termination on June 22, 2020, that her employment would be terminated on Nov. 20. In recognition that the worker’s service was extended past the termination date, the new owner stated that the past five months were an additional period of working notice.
The new owner also said that, in recognition of the difficult climate during the pandemic, it would pay the worker an additional two weeks’ termination pay.
Employment standards legislation in every province requires that notice of termination must be given in writing, says a lawyer.
Notice of termination claim
The worker filed an employment standards complaint for statutory pay in lieu of notice, arguing that the new owner had not provided proper notice of termination. An Employment Standards officer agreed with the worker and ordered the pharmacy to pay the worker eight weeks’ termination pay in recognition of her more than 12 years of service.
The pharmacy appealed, maintaining that the worker had been given termination notice on June 22, 2020, meaning she received more than 10 months’ working notice.
The board noted that the Alberta Employment Standards Code requires employers to provide eight weeks’ notice of termination for employees with 10 years or more of service. The code also stipulates that “a termination notice is of no effect if an employee continues to be employed by the same employer after the date specified for termination of employment.”
In this case, once the worker remained employed at the pharmacy past the Nov. 20, 2020, termination date she had been given, her employment continued and the previous termination notice was no longer in effect, said the board. As such, a new notice of termination reflecting her original start date was required.
Employers may confuse statutory notice entitlements with common law reasonable notice, according to an employment lawyer.
Full statutory notice entitlement
With more than 13 years of service, the worker was entitled to eight weeks’ notice from the new date of termination on May 3, 2021, the board said. The worker had already been provided with termination pay equal to two weeks’ notice, so the new owner of the pharmacy was ordered to pay the worker the equivalent of another six weeks’ wages.
“Once the [worker’s] employment continued past Nov. 20, 2020, the [worker] required a written notice which had to state the date of termination,” said the court. “The notice must have certainty and have a date of termination.”
See 2275261 Alberta Inc. and Bambao-Tabor, Re, 2023 CarswellAlta 1653.
