Another Extended Notice Period Due to COVID

Common law notice period

By Kyle Burgis

When determining what an employee’s common law notice entitlements are following termination of employment, Courts will consider what is referred to as the Bardal factors. Such factors include the employee’s age, length of service, character of employment and availability of similar employment.

An argument that has been raised by Employment Lawyers representing employees who have been terminated from their employment during the pandemic is that the availability of similar employment is significantly less than it was prior to the pandemic. As a result, employees have been seeking longer common law notice periods during the pandemic.

Over the last two years, we have written on other Canadian decisions which have supported the above argument. Recently, a further decision from New Brunswick has followed suit.

Common law notice entitlements

In Miller v. Luminultra Technologies Ltd., after considering other decisions which have increased common law notice entitlements due to the pandemic, the Court awarded the Plaintiff, who was a six-year employee terminated just two months into the pandemic, ten months of common law notice. In reaching the above decision, the Court stated the following:

In my view, the pandemic and its impact on the labor market is merely an extension of one of the factors the Court is directed by Bardal to consider: availability of alternative employment. While there is no evidence in the Record of the specific impact of the pandemic on Ms. Miller or the job sector in which she was seeking employment, there can be little doubt that the pandemic and the shutdowns associated with it would have had some impact on Ms. Miller’s ability to find new employment. I agree with the reasoning in Iriotakis that the pandemic is one of many factors to be considered when assessing reasonable notice. I also agree that termination at the point in the pandemic when the Plaintiff was terminated would tend to “tilt” the reasonable notice towards a longer range. Having regard to Ms. Miller’s age, her length of service (six years) and availability of alternative employment, I conclude that the reasonable period of notice is 10 months.

Takeaway on common law notice entitlements

The above decision demonstrates a further example of the Courts extending an employee’s common law notice entitlements from what it otherwise would have been during non-pandemic times. Of course, the above would not have been a consideration had there been a valid termination clause restricting the employee’s entitlements upon termination.

How Minken Employment Lawyers Can Help

At Minken Employment Lawyers, we can review the facts to recommend the course of action to ensure your best legal protection. Should you need legal advice on notice periods or regarding another aspect of employment law in the workplace, we would be glad to help. Contact us today or call us at 905-477-7011 for assistance prior to taking any steps that may expose you to legal liability.

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Please note that this article is for informational purposes only and does not constitute legal advice.

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