By Matt Lalande in Wrongful Dismissal on January 14, 2021
In every non-unionized employment relationship, the employer has an implied common law obligation to give the employee reasonable notice of its intention to terminate the employment relationship, unless there is just cause for termination. If the employer fails to give the employee reasonable notice of termination, the employee can bring a wrongful dismissal action for breach of that implied term.
The employer’s obligation to provide the employee with reasonable notice of termination does not apply where:
There are two steps to determining the employer’s liability for reasonable notice:
First, we need to determine the period of reasonable notice. There is no definitive catalogue or list that will guide in assessing reasonable notice in a particular case. The common law reasonable notice period may be difficult for counsel to determine in a particular scenario. The assessment of reasonable notice is considered an art, rather than a science. The starting point for determining the reasonable notice period is set out in the seminal case of Bardal v. Globe & Mail.
Second, we must calculate the employee’s damages based upon the reasonable notice period. Reasonable notice damages are usually calculated on the basis of the employee’s compensation per month, multiplied by the number of months of reasonable notice. There may be deductions from the damages for mitigation income and collateral benefits.
It’s important to note that reasonable notice does not compensate a dismissed employee until their retirement, even if there is no likelihood that they will ever secure alternative employment. In the 1990s, there was a rough upper limit of 12 months for clerical and unskilled employees. However, presently, the reasonable notice period has been generally capped at a rough upper limit of 24 months of notice, with the court awarding above 24 months if exceptional circumstances are demonstrated – even for unskilled or clerical employees.
Inflation does not increase the rough upper limit of reasonable notice. Inflation is addressed in the increase of wages over time.
Have you been terminated from your job? If so, your employer is obligated to provide you with a reasonable severance package to assist you in the transition to alternate equitable employment. If you have been fired, it’s important that you have your termination papers reviewed by a qualified employment lawyer to determine whether or not you are being paid not only your minimum entitlements, but what’s fair in relation to your job, your age and how long you been employed with your employer. Contact us today by filling in a contact form and we will get back to you as soon as possible.