Working notice and total notice period

How should working notice be handled with regards to legal entitlement?

Stuart Rudner

Question: If an employee is given notice of termination well in advance, does the amount of working notice affect the overall notice entitlement? For example, if an employee is told in November that she will be let go at the end of the year (allowing for the employee to make preparations and say goodbyes) as opposed to being removed from the workplace the same day, is there any difference in entitlement?

Answer: The simple answer is that there is no difference, and no “discount” if you provide notice. By law, employers are required to provide either notice of termination (working notice) or pay in lieu thereof; the choice is typically the employer’s. However, the determination of how much notice or pay in lieu to which an employee is entitled is the same regardless of how it is provided. As discussed in great detail in other contexts, this will be determined by a combination of employment standards legislation, common law, and contract.

One thing important to remember is that if an employer is going to provide notice, it must be clear and definitive. In other words, simply advising an employee her employment may end sometime next year, or that it is possible the company may close, does not constitute notice at law. The notice period will only begin running once definitive notice which contains an unambiguous termination date is provided.

Stuart Rudner is a founding partner of Rudner MacDonald LLP, a Toronto-based employment law firm. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell, a Thomson Reuters business. He can be reached at srudner@rudnermacdonald.com. Stuart would like to thank Patrick Pengelly for his assistance in the preparation of this article.

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