When working notice is not notice at all

Working notice must have date of termination

As is commonly known, notice of termination can be provided by an employer to an employee in a few different forms. One such form is working notice. However, as the Ontario Superior Court of Justice's recent decision in Thambapillai v. Labrash Security Services Ltd. demonstrates, there are certain elements necessary to validate working notice, and if absent, will render such period of time obsolete.


The employee, Bertram Thambapallai, was employed by Labrash Security Services as a Security Guard for approximately 12 years. In November 2014, Labrash informed Thambapallai that his employment would come to an end in either January or February 2015. Despite such notice of termination, Thambapallai continued working for the Labrash until July 2015 when his employment was ended without any further notice or statutory payments.


As a result of his termination, Thambapallai initiated a claim against Labrash seeking, among other things, his common law notice entitlements.


The court determined that the notice of termination provided to Thambapallai in November of 2014 was not adequate to qualify as working notice. Specifically, the court stated that the notice of termination was insufficient because it did not provide Thambapallai with a certain date of termination, and because he continued to work past the 13-week regulatory period provided for in the Ontario Employment Standards Act, 2000. As a result, the court found that Thambapallai was entitled to his statutory and common law notice entitlements.


Lessons for employers


While working notice is generally only implemented by employers in specific situations, employers must be cognizant of the legal requirements necessary to validate any working notice provided.


Lessons for employees


The above decision demonstrates the usefulness in having termination packages reviewed. Even in situations where an employer provides working notice, depending on the facts, an employee may still be entitled to more notice than what is initially provided.


For more information see:

  • Thambapillai v. Labrash Security Services Ltd., 2016 CarswellOnt 15985 (Ont. S.C.J.).
Ronald S. Minken is a senior lawyer and mediator at Minken Employment Lawyers, an employment law boutique in Markham, Ont. He can be reached at www.MinkenEmploymentLawyers.ca. Ron gratefully acknowledges Sara Kauder and Kyle Burgis for their assistance in preparation of this article.

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