What Is A Reasonable Notice Period?Team
A fundamental tenet of employment law is that notice period of the termination of employment must be given to employees before their effective termination date. Although each is different, the duty to give reasonable notice is both common law and a statutory rule under every province’s employment standards legislation. The common law prescribes a multi-factor test (applying the Bardal v. Globe and Mail factors) for measuring what is reasonable notice. The actual entitlement of a terminated employee will depend on the standard law rules set out in Bardal v Globe & Mail Ltd.
Whereas minimum employment standards legislation such as Ontario’s Employment Standards Act, 2000 (“ESA”) typically uses a fixed formula based on years of service.
A reasonable notice period helps dismissed employees prepare and seek new employment. While the ESA sets out minimum requirements for employers, the common law can require additional notice periods. In this regard, the common law overlays on top of the minimum statutory formulas (requiring certain weeks of wages based on a sliding scale of years of service).
When are employers required to give a notice period?
In Ontario, an employee is eligible for a notice of termination period if they have worked for three months continuously under an employer, which is sometimes called the probationary period. Before the three-month mark, the employer may dismiss without any reason whatsoever, subject only to human rights laws prohibiting discrimination in employment.
Both statute and common law exempts employers from the notice requirement where there has been misconduct by the employee. At common law, to avoid paying notice pay, the employer must establish “just cause,” while under ESA regulations, they must show that the employee was “guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.” It is important to note that these are different standards; even if just cause is established at common law, severance pay may still be owing to the dismissed employee under the ESA if their conduct did not rise to the level of the ESA test. On the other hand, an employee who is shown to have been dismissed due to misconduct, insubordination, or neglect of their duties and responsibilities will be unable to rely either on the common law or the ESA for a right to notice of termination.
If the eligibility requirements are met, terminated employees are entitled to the minimum requirements set out in the ESA.
What are the minimum requirements for notice period under the ESA?
Under the ESA, a dismissed employee that has met the requirement of being continuously employed for at least three months is entitled to the minimum notice of one week. This figure increases as the employee’s service lengthen. To implement this notice period, the employer must either give “working notice,” where the termination date is fixed and specific but not immediate, or pay instead of notice, where the employee departs immediately but is paid a lump sum amounting to the wages they would have been paid during the notice period.
The ESA also protects employees from reprisals by employers. Employers cannot change the wages of an employee upon notice of termination. The ESA also protects any benefits or contributions made by the employer throughout the term of employment and notice period.
While the specific notice period entitlements can be found in the ESA, the general trend is that employees are given one week of notice for every year that they have been employed.
How are notice period determined in common law?
The so-called Bardal factors determine an employee’s reasonable notice period. These are:
- The age of the employee at termination
- The length of service or employment
- The character of the employment
- The availability of similar or comparable employment
The Bardal factors do not represent a strict formula used to determine a notice period. They should be understood as factors that may increase or decrease the notice period that an employee is entitled to.
An employee’s age at the time of termination informs the notice period because it is likely that a younger employee will be able to find subsequent employment quicker than an older employee, if at all. An older employee may be entitled to more notice than a younger one.
The length of service considers how much an employee has committed and contributed to an employer. A lengthier term of service of employment will likely translate to a more extended notice period.
The character and availability of similar or comparable employment is also an essential factor. The rationale is that jobs that require a higher level of skill, education, or training may be harder to come by. Additionally, the more executive or managerial an employee’s position is within a workplace, the less likely it may be that a similar job will be readily available.
A notice period is an essential entitlement for employees. It allows for financial security and stability during a transition period caused by termination. The ESA sets out minimum notice period requirements that employees are entitled to. Generally, one week of notice is given for every year of employment. However, these are not strict guidelines to follow but merely minimum requirements that need to be met. Under common law principles, employers may be required to provide further notice of termination periods.
If you are unsure about the notice of termination period you are entitled to or obligated to give, our team of experienced employment and human rights lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected], and we will be happy to assist.
Disclaimer: The goal of this blog is only educational. It is to help you understand some of the common and general inquiries we receive. Please do not rely on this as legal advice because legal advice is tricky and dependent on specific situations. Make sure you consult with a lawyer before using this information. Should you require legal advice for your particular situation, fill out the contact form, call (800) 771-7882, or email [email protected]