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The Concept of Reasonable Notice in Wrongful Dismissal Cases
In order to determine what factors are the most important criteria to consider when giving reasonable notice it is essential to understand the employer/employee relationship. ... The most important factor to consider in giving reasonable notice is length of service. ...
The purpose of providing reasonable notice is to provide the employee with a reasonable period of time to find alternative employment. In cases where there is no agreement as to notice between an employer and employee, the reasonable notice which an employee is entitled varies depending on the circumstances of the case. In these cases there a number of factors an employer should consider in determining how much notice should be provided. Prior to the Bardal decision many companies in Canada used the “rule of thumb” method for calculating how much notice to provide. For management employees the “rule of thumb” calculation was one month of notice for every year of service. For clerical or general labour employees they required less notice. The “rule of thumb” method had some significant flaws in the calculation of notice. The “rule of thumb” method overemphasized one of the four Bardal factors generally used by judges to determine reasonable notice. ... decision is the most influential case used in determining the appropriate notice period. ...
The use of the Bardal factors allows for greater flexibility in determining reasonable notice, which in my experience appears more of an art than a science. If there is no agreement on notice between the employer and employee then a judge would make the decision what is reasonable based on the Bardal factors. ... The employer’s obligation is to provide reasonable working notice. The only issue to be determined when it gets to the courts is what constitutes reasonable notice and how long the length of notice should be. ... The higher the status a person holds in a company, the greater the entitlement to a longer period of notice. People with management status, including supervisory responsibilities, will generally result in an employee being placed at the upper end of the notice scale. People who hold non-managerial positions whose main function is clerical will normally result in a shorter period of notice. ... In my experience these types of employees require a greater notice period. Conversely, an employee who is not specialized requires less notice. ...
Length of service is another factor in determining how much notice is required. ... Most companies’ severance policies place a heavy consideration on length of service when considering the amount of notice required. ... These types of employees have less chance of finding alternative employment, and therefore would require a longer period of notice. Although there is some unpredictability length of service has on notice there is a direct correlation with age. For example, an employee in their mid fifties with more than ten years of tenure with the same company would probably be awarded less notice because her tenure with the company was less than her working life. On the other side, there is a case where a salesperson in the late twenties with eight years of tenure with the same employer, which represents the employees’ entire working life should have been given a lengthier notice period, but was only awarded four months. There are cases that support because an employee has spent an entire career with a company does not guarantee the employee a longer notice period.
Approximate Word count = 2744
Approximate Pages = 11
(250 words per page double spaced)
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