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.
To remind, reasonable notice is an implied term in an employment contract. Employers must provide reasonable notice (or pay in lieu thereof) to an employee upon dismissal or termination.
Reasonable notice at common law is routinely confused with an employee’s minimum notice entitlements set out by statute. In Ontario, those minimum statutory entitlements are set out in Ontario’s Employment Standards Act, 2000. These statutory entitlements are minimum entitlements. An employee may be entitled to a significantly longer notice period under the common law. For instance, depending on the individual nature of the case, a wrongfully dismissed employee may be entitled to over 24 months of common law notice.
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.
However, this is not the end of the story. There are other factors set out in other decisions that are also used by employment lawyers and courts when determining what a reasonable notice period may be. For instance, the employment contract itself may broaden or narrow the reasonable notice period depending on the provisions of that particular employment contract. Another factor would be inducement. Inducement can occur when an employer has induced an employee to leave secure employment and to join the employer’s workplace as an employee. An individual’s language skills may also play a role in determining the length of notice a dismissed employee is entitled.
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.