Determining Legal Rights With Employment Terminations
Reasonable notice, in employment law, is a notice period where an employer gives an employee notice that the employee’s position is being terminated or changed in a way that may be considered constructive dismissal. The time frame required for reasonable notice varies significantly depending on each specific situation. The employment lawyers at Calgary based Kahane Law Office complete reasonable notice assessments for employers across Alberta. Read more to learn about how to protect your company, or to understand your rights as an employee.
What Is Reasonable Notice?
Reasonable notice is a term that refers to the reasonable or “fair” time frame an employer needs to give an employee that their position is ending or significantly changing. The Alberta Employment Standards Code sets out the statutory (legislated by Alberta law) minimum time frame required for such notice. However, this time frame is only a minimum standard. The Common law, or written court rulings (decisions) set out a greater standard based on various specific circumstances. Employees benefit from this greater reasonable notice period. Conversely, employers face these standards when offering termination packages.
Why Hire Reasonable Notice Assessment Lawyers?
As set out below, many factors determine what reasonable notice is. Both employers and employees need a clear understanding of the law in order to best protect themselves. Due to the types of consideration, the cross-affecting of one factor over another, and the amount of case law available, both parties are well advised to seek a legal opinion in order to best protect their interests.
Reasonable Notice Period Factors
As stated, several factors enter into consideration in determining the time required to give an employee for reasonable notice. In Canada, we refer to these factors as Bardal Factors, due to the original lawsuit between the Globe & Mail Ltd and an individual named Bardal. Since that case, other cases continue to add to the case law that makes up the factors to consider. For example, the following factors all come into play in making this determination:
- How old an employee is;
- Qualifications of employee;
- Total continuous time they worked for the employer;
- Availability of other similar positions in the open workplace in their geographic area at the time of termination;
- Situations where an employer entices someone to give up an existing job for the current position;
- Whether an employee relocated for the position or not;
- Salary; and lastly
- Position type (management vs non-management, highly skilled vs non-skilled, physical vs “desk”);
Situations Requiring No Reasonable Notice
In some circumstances, no reasonable notice is required by law. For example, and depending on situational circumstances, an employer needs not give notice if:
- Termination of the employee occurs within 90 days of commencement of employment;
- The end of a specific term contract employment;
- Termination for cause;
- Seasonal employment contracts;
- Task specific employment contracts.
Pay In Lieu Of Notice
Instead of giving notice, some employers prefer a terminated employee to no longer come to work. In this case, instead of the employee working during the notice period, the employer pays the employee for that time. For example, in lieu of two weeks’ notice, the employer pays the employee two weeks of their regular salary. The employer must make this payment to the employee within three days of a position termination.
Termination Notice And Termination Pay
As stated, employers may give employees either notice of the termination of their position, or pay them for that notice period. Alternatively, a combination of notice and pay is an option for an employer. In this situation the cumulative total of notice and pay equals the reasonable notice period.
Short Service Employees
Some court decisions support the notion that, in relation to the time working for an employer, short service employees receive a proportionately greater reasonable notice period. Short service employees generally mean an employee whom works for an employer for less than three years.
Other Factors To Consider In Reasonable Notice Assessments
The Common Law also looks at other factors to consider when assessing reasonable notice and the amount an employer pays terminated employees. For example, other factors include factors such as:
- Unfair dealings;
- Bad faith;
- Industry standards;
- Any employment contract;
- Terminations during a recession;
- Conduct of dismissal; and lastly
- Wrongful dismissal.
Mechanisms to protect both employees and employers include employment contract. On agreement of both parties, a contractual term includes a prescribed notice period. This means that the time for giving reasonable notice is set in advance. Doing so, means protecting against a dispute if the requirement for giving notice arises.
Duty To Mitigate
Every person terminated from her or his employment is required to mitigate their loss. This means that the employee has an obligation to seek out new employment to reduce the financial consequence of losing their job. Failure to mitigate, often leads to a lessor payment in terms of reasonable notice. This only applies to the common law notice period and not the legislated Employment Standards Code minimums.
Cost Of A Reasonable Notice Assessment
At Kahane Law Office we believe in affordable flat rates. Our flat rate packages set apply to employees for a review of an offered termination or severance package. In addition, we offer flat rates to put together the entire termination package to ensure that no additional problems arise from the termination.
Calgary Reasonable Notice Assessment Lawyers
Please email or call to set up your appointment today. Our employment lawyers meet with you one on one to ensure that you stay protected financially. Please note, we offer our services via video conferencing (Skype) or telephone consultations when needed. Connect with us when you need us. Reach our Calgary based office today by calling 403-225-8810 or emailing today to contact us.