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5 Quick Points about “Reasonable Notice” of Job Termination

By Matt Lalande in Wrongful Dismissal on January 14, 2021

5 Quick Points about “Reasonable Notice” of Job Termination

1. What is Reasonable Notice?

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.

2. When does the obligation to give reasonable notice not apply?

The employer’s obligation to provide the employee with reasonable notice of termination does not apply where:

  • The employee resigns their employment;
  • The employment relationship is frustrated;
  • There is just cause for termination of employment or
  • The employment contract contains a valid term providing for the amount of notice to be given in the event of termination.

3. What are the steps in determining if your employer’s liability for reasonable notice?

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.

Reasonable notice is decided with reference to the following key factors (known as the “Bardal factors“):
  • The character of the employment.
  • The employee’s length of service.
  • The employee’s age.
  • The availability of similar employment, having regard to the experience, training and qualifications of the employee.
Bardal lists the most important factors to be considered in assessing the common law reasonable notice period. These factors are weighed and balanced by the courts in their analysis. No single Bardal factor is to be given disproportionate weight.  Bardal does not provide an exhaustive list of the factors to be considered. Courts have added other factors into the analysis. However, additional factors are not given the same weight as the Bardal factors, except (arguably) for the factor of inducement. Other factors can be an employee’s medical condition, the specialty of the employment, the economic climate ect.
Courts will determine a range of reasonableness from reviewing recent reasonable notice awards looking for similar Bardal factors, and adjusting for differences.  Some of the Bardal factors are interrelated, and the emphasis placed on them varies depending upon the state of the job market and the court’s perception of workers of a certain age or expertise. For example, the significance of the character of the employment relates at least in part to the availability of replacement employment, and the emphasis on age in part reflects a perception that people of certain ages may have more success or difficulty in obtaining replacement employment, particularly in cases of long service in which the employee has not been required to seek out new employment for considerable time.

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.

4. Is there an upper limit for reasonable notice of termination?

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.

5. Does inflation affect or increase reasonable notice?

Inflation does not increase the rough upper limit of reasonable notice. Inflation is addressed in the increase of wages over time.

Terminated and have a question about reasonable notice?

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.

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