The notice period for terminating an employee may be dictated by
contract, statute, or common law.
(I) Employment Contract
If the parties have expressly agreed to notice terms in the
employment contract, then the court will enforce those terms,
Meet the minimum standards in the
employment standards legislation (see below); and
Are not otherwise contrary to
contract law principles under doctrines such as duress, undue
influence, and unconscionability.
If a contract specifies a notice period that is less than the
minimum statutory notice, it is likely that the courts will find
this provision to be null and void, and will impose the
notice as dictated by the common law.1
(II) Statutory Notice - Employment Standards Act
Section 54 of the Employment Standards Act (the
"ESA"), says that an employee who has been
continuously employed for three months or more, is entitled to
at least one week of pay per year of employment, to a
total of eight weeks pay.
Rule of Thumb Common law reasonable notice for
indefinite employees is 1 month of pay per year of employment.
Courts infrequently adhere to this rule of thumb and tend to award
damages that are more or less than the employee's theoretical
entitlement under the rule of thumb.
(III) Common Law Notice and the Bardal Factors
The determination of common law reasonable notice involves the
consideration of the Bardal Factors. In Bardal v.
Globe and Mail Ltd., the Court referred to a number of factors
which must be considered in determining the appropriate length of
notice for a dismissed employee.2 Such factors
Character of employment (the
prestigious nature of the position);
Length of service;
Age of the employee;
Availability of similar employment;
Qualifications of the employee.
In theory, these factors are given equal weight, but depending
on the circumstances, courts may give more weight to some factors
Extending the Notice Period
In addition to the Bardal Factors, other circumstances may
lengthen the duration of reasonable notice.
An employee who relocated at the
behest of the employer is entitled to a larger award of damages
than he/she would have been entitled to otherwise;3
If an employee was induced to enter
the employment contract;4 or
If an employee is terminated during
an economic recession, the court acknowledges the increased
difficulty in finding a new job, and thus may require a longer
Probationary and Fixed-Term Employment
Generally, reasonable notice of termination does not apply to
probationary employment. To justify the dismissal of probationary
employees, an employer must only show the following:
The employee was given a reasonable
opportunity to demonstrate his/her suitability for the job;
The employee was found not suitable
for the job; and
The employer's decision to
dismiss was based on an honest, fair, and reasonable
Generally, reasonable notice does not apply to fixed-term
employment contracts. At the expiry of the fixed term, the
employment relationship ceases, and neither party has a duty or
obligation to renew the contract.
If the employer terminates a fixed-term contract prior to its
term, the employer must pay compensation equivalent to the income
the employee would have earned during the contract, unless the
contract expressly stipulates the sum payable on termination or the
employer has cause for termination.
Statutory Requirements during the Notice Period
According to Section 60(1) of the ESA, an
Shall not reduce the employee's
wage rate or alter any other term or condition of employment;
Shall in each week pay the employee
the wages the employee is entitled to receive, which in no case
shall be less than his or her regular wages for a regular work
Shall continue to make whatever
benefit plan contributions would be required to be made in order to
maintain the employee's benefits under the plan until the end
of the notice period.
According to subsection (3), if the "employer fails to
contribute to a benefit plan...an amount equal to the amount the
employer should have contributed shall be deemed to be unpaid
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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