When does it start?
Question: Does the notice period start when an employee is verbally informed of termination or when the employer provides a termination letter?
Answer: In every province in Canada, employment standards legislation requires that notice of termination of employment must be given in writing. As such, statutory notice of termination does not begin to run until a written termination letter is provided to the employee by the employer, making the termination official.
At common law, the onus of proving that a notice of termination is clear and unequivocal “rests upon the employer who seeks to raise it as a defence to an action for damages for wrongful dismissal” — see Yeager v. R.J. Hastings Agencies Ltd. In other words, an employer has the onus of proving that proper notice of termination was given in order to establish that notice of termination runs from a particular date.
Notice of termination has been held to be invalid where an employer creates uncertainty with respect to the status of an employee. As a result, while statutory notice of termination must be given in writing, the best practice is to provide all notices of termination in writing and to state clearly the date that notice is given and the date at which the termination becomes effective. The notice period will begin to run from the date that written notice is given.
The principle that notice must be provided in writing is also relevant to constructive dismissal situations where the employer gives unilateral working notice of a fundamental change to terms and conditions of employment. An employer may affect a unilateral change to terms and conditions of employment by providing working notice of the change equal to the notice required to terminate the employment contract, giving the employee an option to accept the change or be terminated at the end of the working notice period. The employer can then offer the employee a new employment contract under the altered terms. However, if the employer fails to provide proper notice of termination of the contract, the employee will be entitled to insist on adherence to the original terms of the employment contract. As such, notice of the termination of the contract (if the change is not accepted) should be provided in writing. It must be made clear, in writing, that if the employee does not accept the change at the end of the working notice period, his employment will be terminated — otherwise the notice of termination will not be effective: see Wronko v. Western Inventory Service Ltd.
For more information see:
• Yeager v. R.J. Hastings Agencies Ltd., 1984 CarswellBC 768 (B.C. S.C.).
• Wronko v. Western Inventory Service Ltd., 2008 CarswellOnt 2350 (Ont. C.A.).
