Giving appropriate working notice

Question: What are the necessary steps for giving a terminated employee working notice that is valid?

Answer: Working notice allows an employer the opportunity to terminate an employee without having to pay out a large amount of pay in lieu of notice because actual working notice of termination is provided. In order to give proper working notice an employer must first provide the appropriate amount of notice.

This means either the amount of notice that the parties have agreed to in an employment contract or reasonable notice calculated in accordance with the common law. In the second situation, the minimum amount of working notice should be a reflection of what a court might award in the circumstances. Given the reality that an employee who is given working notice might be less than enthusiastic about having to work out the notice period instead of receiving a lump-sum severance, it is a good idea to err on the side of generosity in the amount of notice provided.

The notice given must be clear and unambiguous. It is therefore important to provide the employee with a written letter of termination that clearly specifies when the notice period commences and finishes. Otherwise, the notice may be of no effect. The employer should also remind the employee of her obligation to continue working in the same capacity and to the same high standard for the duration of the notice period.

The employer should also express its intention to maintain the terms and conditions of the individual’s employment until the date of termination. For the notice to be effective, the employer must allow the employee reasonable time off to attend interviews for the purposes of finding alternate employment. Working notice is not a practical alternative in many scenarios. Often, an employer is much better off where a terminated employee is immediately out of the workplace.

However, where it is appropriate and if done correctly working notice can greatly reduce an employer’s obligations on termination. Finally, employers should bear in mind that an employer will still have to make any severance payment (but not termination payment) required by the applicable provincial employment standards legislation.

Peter Israel is counsel to Goodman and Carr LLP in Toronto and is head of the firm’s Human Resource Management Group. Peter can be reached at [email protected] or (416) 595-2323.

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