Notice for employees with short period of service

Reasonable notice for workers with less than two years' experience

Colin Gibson
Question: We are restructuring and downsizing unskilled labour positions. Is there a standard notice period to be given to workers with two years or less service?

Answer: Non-union employees who are dismissed without cause are entitled to receive notice of dismissal or compensation in lieu of notice, in accordance with the employee’s statutory and contractual entitlements.

An employer planning a downsizing should review employment standards legislation to determine each employee’s minimum statutory notice or severance entitlement. If a group of employees is being dismissed, the employer must be careful to check the statutory group termination requirements to see if they apply. In British Columbia, for example, an employer who dismisses 50 or more employees at a single location in a two-month period must provide all such employees, regardless of their length of service, with eight to 16 weeks of working notice or termination pay, in addition to each employee’s individual termination entitlement.

Once the employer has identified an employee’s entitlement, it should then consider whether the employee is entitled to additional notice or compensation under the employment contract. If a written employment contract exists that sets out the amount of notice or severance the employee gets on termination, the terms of that contract are likely to govern, provided the contract is enforceable and the termination clause meets or exceeds the employee’s statutory entitlement.

If no express termination provision exists, the common law makes it an implied term of the employment relationship that the employer must provide the employee with reasonable working notice of dismissal. In assessing the amount of notice that is “reasonable,” courts do not use a simple mathematical formula (such as a sliding scale based upon years of service). Rather, the court must determine the amount of notice that is reasonable in all the circumstances of the case. Usually, a judge will consider the employee’s age, length of service, character of employment and prospects for obtaining similar alternate work. In addition, if the court finds the employer acted unfairly or in bad faith towards the employee in connection with the dismissal, it can extend the notice period.

Given the judicial discretion in this area, it is never possible to predict with certainty the length of notice a court will consider reasonable for a particular employee. Rather, one can only estimate — by reviewing recently-decided cases arising from similar facts — the range of potential notice periods that might be awarded.

In many cases, an employer will not be required to provide more than the statutory minimum amount of notice to an employee who is relatively young, has short service and occupies an unskilled position. There is some case law to support the principle that reasonable notice for such employees should not exceed the applicable statutory amount but, perhaps more importantly, it will usually be financially impractical for the employee to commence a court action seeking what would, at best, be a very modest sum in wrongful dismissal damages.

Colin G. M. Gibson is a partner with Harris and Company in Vancouver. He can be reached at [email protected] or (604) 891-2212.

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