What kind of reasonable notice is required for someone who’s still fresh on the job?
Question: How much notice for a without-cause dismissal must an employer give a very short-term employee — such as someone with two months of service — who isn’t on probation? Are there any other legal issues that could come up in such circumstances?
Answer: Guidance on how much notice an employer must give to a short-term employee may be derived from two sources: provincial or federal employment legislation; or common law.
The statutory entitlements under provincial or federal employment legislation are minimum notice entitlements only. For example, in Alberta, the employment standards legislation provides that an employer must give notice of at least one week if the employee has been employed by the employer for more than three months but less than two years.
However, unless the employee’s employment contract includes an express notice period, or makes specific reference to the notice periods contained in the applicable employment standards legislation, a terminated employee is entitled to reasonable notice (or pay in lieu thereof) as determined at common law, which generally provides a significantly greater notice period.
An employee’s right to notice or pay in lieu of notice under common law involves a balancing of a number of factors, including those referred to as the “Bardal” factors. These are:
• the character of the employment
• the length of service
• the age of the employee
• the availability of employment, having regard to experience, training and qualification.
The range for common law reasonable notice is typically anywhere from zero to 24 months’ pay. There is no general rule that very short-term employees will only receive minimal notice or pay in lieu thereof. In fact, there are a number of examples of short-term employees receiving disproportionately lengthy notice periods. In the 2008 Rejdak v. Fight Network Inc., as an example, a former employee who had only worked for one month prior to termination was awarded four months’ pay in lieu of notice.
Some of the factors — in addition to the Bardal factors — that may be considered, and may give rise to additional legal issues, include: a break in service, economic downturn, inducement, improper cause allegations, improper interference with mitigation, successor employer, near cause, custom and industry practice, promises of job security, and relocation.
For example, in cases where an employee has been induced to leave secure employment elsewhere, and then is dismissed after a relatively brief term of employment, it is likely to increase damages for reasonable notice. In the 2001 McIntosh v. C.T.F. Supply Ltd., for example, the employee was awarded seven-and-a-half months’ pay in lieu of notice after only three weeks of employment. In this case, the employee had been induced to leave a stable job he held for over a year. The court found the employer had intended to terminate the employee once he provided his business contacts. The court went on to say the employer was liable for at least the same notice period the employee could have expected at his prior job.
Practically, lengthy common law notice periods can be avoided by including a termination clause in the employment contract. A termination clause must, at least, meet the statutory minimum entitlements of the applicable employment standards legislation.
For more information see:
•Bardal v. Globe and Mail Ltd., 1960 CarswellOnt 144 (Ont. H.C.).
•Rejdak v. Fight Network Inc., 2008 CarswellOnt 4521 (Ont. S.C.J.).
•McIntosh v. C.T.F. Supply Ltd., 2001 CarswellOnt 4643 (Ont. S.C.J.).
Tim Mitchell practises management-side labour and employment law at Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225 or [email protected].
