“Working notice” or “termination pay”?

In many cases, when an employer wants to fire an employee without just cause, termination notice is required. If this is the case, there are two main types of termination notice. The first is “working notice”, where the employer informs the employee on the coming termination in advance, and the employee continues working until the termination date. The second is termination pay (aka pay in lieu of notice), where the employer asks the employee to leave right away and pays the money the employee would have earned if there had been “a working notice”. If the “working notice” is shorter than required, it can be combined with termination pay. The proper amount of termination notice the employer must give to the employee depends on the facts of the case.

Minimum termination notice

First of all, the minimum amount of notice is prescribed by the statute. In Alberta, the statute applicable to many (but not all jobs) is the Employment Standards Code. According to its current version, the minimum notice period ranges from one week to eight weeks, depending on the length of employment. No notice is required on part of the employer if the employee’s period of service is less than three months (or 90 days, as of January 1, 2018).

Reasonable termination notice – more than just minimum

Many employees are entitled to receive more notice in case of termination without cause than required by statute. The point is that the rules on the proper termination notice come not only from statutes, but also from court decisions. The courts calculate the notice based on what is “reasonable” in all the circumstances of the case, considering multiple factors. All the factors are important, and, to some extent, they are interrelated. These factors include:

1. Character of the employment, including level of seniority and skills required from the employee

The rationale behind this factor is that people in senior or highly specialized positions may have a harder time finding new employment, to the result that more notice may be reasonable.

2. Length of service

Here the assumption is that loyal employees should get a longer notice period.

3. Age of the employee

The courts recognize that older people may have more difficulty finding new job as they may need additional training to acquire modern skills to become competitive.

4. Availability of similar employment

Here, we look at the employee’s expertise, personal circumstances and the market conditions to determine whether and when alternative employment can be available.

5. Inducement on part of the employer

Based on this factor, the courts may give more notice to an employee if the employer convinced him/ her to leave another job, to the result that the employee gets some reward for the sacrifice.

Additional factors that are worth consideration

There are lots of other things that can affect the amount of money an employee can get in case of termination without cause.

For example, no termination notice can be available for certain employees. Otherwise, termination notice may be less than the court is prepared to give if the employee signed a valid contract or release limiting the entitlement. The validity of the document is a separate issue that needs your lawyer’s attention.

On the other hand, in addition to reasonable termination notice, an employee can get compensation in case of improper behaviour on part of the employer. This may happen when the employer terminates employment in a cruel or offensive manner, for unfair reason, or in violation of the human rights law.

All in all, there are multiple issues to consider. The best way is to discuss your situation with a lawyer. Often, the lawyer may help you to avoid litigation and to negotiate on the termination pay with your employer.

The content of this article is intended to provide a general guide to the subject matter and should not be considered as legal or other professional advice. To get detailed information regarding your specific circumstances, please discuss your situation with a lawyer or other professional.