Labour & Employment Law Blog

What You Need to Know About Common Law Notice

What You Need to Know About Common Law Notice

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.

The above article is for general information purposes only, does not constitute legal advice or create a solicitor-client relationship. Because each case is unique and factually driven, 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. We represent clients in the Greater Toronto Area including Toronto, North York, Markham, Vaughan, Thornhill, Newmarket, Aurora, Brampton, Mississauga, Barrie, Ajax, Whitby, Pickering and Oshawa.

Legal Receptionist

Zeilikman Law is an employment law firm located in Vaughan, Ontario. We are looking to hire a legal receptionist to join our firm. Preference will be given to candidates who have experience working as a receptionist at another law firm.

Location: Vaughan, Ontario.

Start Date: Immediately.

Hours: Monday to Friday, 9 am to 5 pm. Full time. In-person only. This is not a remote work position.

Wages: 35,000 to 40,000 per year.

Duties and Responsibilities:

  • Manage our firm’s multi-line telephone system to receive incoming calls.  Screen incoming telephone call inquiries to determine the nature of the telephone call and provide standard information related to our legal services.  Take and deliver messages and route incoming telephone calls to the appropriate staff person.
  • Answer general inquiries coming from the firm’s social media and website email.
  • Welcome in-person visitors upon arrival.  Direct visitors to the appropriate staff person and / or office or boardroom.
  • Organize in-person visitor schedule to prevent overlap and multiple bookings.
  • Receive, sort, and distribute daily mail and deliveries.
  • Arrange for couriers.
  • Keep front reception, kitchenette area and boardroom tidy.
  • Perform various clerical duties such as filing, photocopying, and faxing on an as-needed basis.
  • Process client or other payments.
  • May be asked to run minor errands outside of office such as attending post office to arrange a courier or pick up mail.
  • May be asked to assist other law clerks or lawyers of the firm as required and as appropriate.
  • Any other basic administrative duties or tasks as deemed appropriate.

Required Skills:

  • Basic knowledge of general office procedures including filing, faxing, and printing and copying.
  • Basic word processing computer skills.
  • Proficient in receptionist and telephone practices, etiquette, and decorum.
  • Professional attitude and appearance.
  • Excellent organizational skills.
  • Positive customer service attitude is a must.
  • Must be able to maintain confidential and sensitive information.

Education and Experience:

  • Highschool diploma or equivalent.
  • 1 – 2 years’ experience in an office setting with an emphasis in accounting, reception or clerical work is required.   We would prefer experience in a law firm environment.

Applications for this position should be sent via email to jennifer@zeilikmanlaw.com. All applications should include a cover letter, resume and at least two references. Only successful candidates will be contacted.