Employment lawyers use a wide array of differing factors to determine an appropriate notice period for a dismissed or terminated employee. However, there is not an exact methodology or set of calculations used by lawyers or courts to determine an appropriate notice period at common law. Generally, employment lawyers use key pieces of information garnered from a review of case law that will be the basis for a reasonable notice period range with respect to a particular matter.
So what is the common law? The “common law” is simply broadly acquired law derived from judge-made decisions in courts or tribunals and finds its source in precedent rather than legislation or statute. Common law notice is, therefore, broadly acquired law derived from judge-made decisions determining the reasonable notice period of wrongly dismissed employees. The bulk of these decisions (which are incredibly numerous) will set out certain “rules” that can be applied to individual cases.
The leading decision setting out what may constitute reasonable notice is the case of Bardal v. Globe & Mail Ltd. The judge in that decision set out that the reasonableness of any notice period must be determined upon each individual case and according to the following factors: 1) character of employment, 2) the employee’s length of service, 3) the age of the employee and 4) the availability of similar employment, having regard to the experience, training and qualifications of the employee. These above factors are referred to as the “Bardal” factors and have been used by every level of court to assist in determining an appropriate common law notice period for a wrongly dismissed employee. Generally speaking, older employees with a long tenure with an employer should be awarded longer notice periods.
Finally, it is important to note that common law notice may be greatly reduced or even eliminated altogether depending on the contents of the written provisions of an employment contract. Employees also have a duty to mitigate their damages with respect to common law notice by looking for alternative work once dismissed or terminated and throughout the notice period term.
Upon dismissal, it is crucial for employees to seek the advice of an employment lawyer in order to determine if they could claim common law notice in addition to their statutory minimum notice entitlements.
The above article is for general information purposes only and does not constitute legal advice. If you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere.