Reasonable Notice of Dismissal
Published September 23, 2010
Associated Areas of law
Like the ability to terminate employment if there is just cause to do so, it is an implied term in every employment contract that a reasonable period of notice must be provided to any employee who is being dismissed without cause. This implied term exists notwithstanding applicable legislation or any written employment contract. A reasonable notice period affords the dismissed employee an opportunity to reorganize his or her life, and to find new employment.
Since the the 1960s, Canadian courts have based their approach to reasonable notice largely on public policy considerations. In the 1960 Ontario court decision, Bardal v. Globe & Mail Ltd., the court said that there could be no general rule laid down as to what reasonable notice would be in particular types of cases. The court said that reasonableness of the notice must be decided on a case-by-case basis, considering all the circumstances of the individual’s employment. This case became the seminal Canadian court decision on determining reasonable notice for a dismissed employee.
While there is still no set formula, after Bardal, Canadian courts began engaging in a process to determine reasonable periods of notice based on the facts of each case. Courts will consider, among other things, an employee’s age, length of service, the character of employment, and the availability of similar employment. This may also entail considering the experience, training, and qualifications of the dismissed employee. The common thread throughout the factors considered is that each factor may affect, positively or negatively, the amount of time in which it is reasonable to expect a dismissed employee to be able to obtain new employment.
So, for example, an older employee may be entitled to a longer period of notice than a younger employee, if the court determines that businesses will be more likely to hire young employees in the person’s field. A long-serving employee may be entitled to a longer notice period than a medium-term employee, as long-term employees may be seen to have limited transferable skills.
Dismissal is effective at the end of the notice period, not the beginning. For notice of termination to be effective, it must be clearly communicated to the employee. The onus of proving that proper notice was given rests on the employer who seeks to raise it as a defence to an action for damages for wrongful dismissal. If an employee is dismissed without cause and without reasonable notice, this is a breach of contract and all damages resulting from the breach are recoverable by the employee. The damage award will attempt to place the dismissed employee in the same financial position he or she would have been in at the end of the period of notice had he or she actually been given the appropriate notice of the pending termination. This may mean, at the very least, paying what the court determines to be a reasonable notice period, as well as an award of legal costs against the employer. In order to avoid such situations and the associated headaches, it is important that employers take the time to determine reasonable notice for any employee who is being dismissed without cause. An employment lawyer can be of assistance in making such a determination.
This article is intended for information purposes only and is not intended to be legal advice. We suggest you contact a legal professional for advice on your particular business and circumstance.