What is “reasonable notice” and when does it apply?

Posted on July 4, 2016 · Posted in Blog, Employment Law

Given the importance of work for people to pay their bills and provide a sense of purpose in life, it is never easy when employment comes to an involuntary end. In today’s more volatile climate, many employees are often terminated from their work through no fault of their own and for reasons they simply cannot control.

The good news for employees is that their employer cannot summarily dismiss them without either a reasonable notice period or pay unless they have “just cause“, reserved for egregious misconduct going to the root of an employment contract. The statutory benefits do only apply to employees, and not to self employed independent contractors so the statutory benefit of reasonable notice is an obvious benefit of being an employee.

Reasonable notice is the period of time that an employer must provide to an employee before the employee is actually terminated. The law takes the position that an employer who terminates an employee without just cause has technically breached its contractual obligations, and is obligated as such to provide the departing employee with a reasonable period of time to begin searching for comparable work.

The Employment Standards Act, 2000 specifies how much notice an employer must provide, and it varies depending on the length of continuous employment. For instance, s. 57(a) requires an employee that has worked for up to one year as entitled to one week’s notice, with a maximum of eight weeks’ notice for employees that have been with their employer for eight years or more. s. 57(h).

Most employees might also be entitled to a more generous severance payment in addition to reasonable notice. The reasoning for this more  is to address that long standing employees within an organization with a substantial payroll should be rewarded for their loyal service in the absence of just cause, and to address the fact that it might be more difficult for them to transition to a new comparable job after a lengthy period of continuous service.

The Bardal factors articulated in the case law are far more instructive in calculating severance pay amounts. These factors include but are not limited to length of service, occupational skill, availability of comparable employment, economic factors, and age of the employee. See also this article for a useful discussion of calculating severance.

The estimate of one month pay per year of service as a severance payment, while useful as a rule of thumb, is merely an approximation and should not be assiduously relied upon. It does however indicate that where an employee is eligible for severance, the amounts usually do significantly exceed the statutory reasonable notice entitlements.

Employees should be sure that unless an employer actually does have just cause against them for serious misconduct, reasonable notice or pay in lieu thereof apply as a matter of right. The notice amounts specified in the Employment Standards Act are the statutory floor, meaning that they are unlawful if they are any smaller or shorter than what is prescribed. Many employees of one year or less often do end up receiving two weeks’ notice or pay instead of the one week minimum, but this is discretionary.

The involuntary termination of employment is unwelcome and stressful, but employees can take solace in knowing that they have rights that are codified in our Employment Standards Act. If you or someone that you know needs to have a notice of termination reviewed, I can be reached by email at jeremy.richler@gmail.com or at (647) 468-8347.