Reasonable Notice—What Constitutes “Reasonable”?

Man with pink slip termination notice

In employment contracts of an indefinite nature (that is, not “fixed-term” contracts), the right to reasonable notice is an implied term. Failing to provide reasonable notice constitutes wrongful dismissal and could make an employer vulnerable to a wrongful dismissal claim and liable for damages. Because statutory minimums provide only the legal minimums, determining what constitutes “reasonable” notice is crucial for avoiding the possibility of litigation by employees who may be entitled to far more notice under common law.

Statutory Minimums—Only a Minimum

An employee who has been continuously employed for three months or more in an indefinite employment contract is entitled by law to a minimum amount of notice, which can range from 1 week to several months for each year of service depending on the position, age and length of the employee’s service. Reasonable notice of termination under the common law (court decisions) is often extraordinarily higher than the statutory minimums.

How Courts Determine “Reasonable”

The numerous and widely varying cases involving wrongful dismissal highlight the fact that hard and fast rules do not exist for determining reasonable notice. Outside of statutory minimums, the traditional “rule of thumb” that an employer pay one month’s worth of notice for every year of the employee’s service does not actually exist at common law. In many cases, notice is much higher or lower than one month for each year of service. In the past, reasonable notice was also informally capped at 24 months. However, notice can exceed 24 months in extraordinary cases.

The leading case on the matter of reasonable notice is Bardal v. Globe & Mail Ltd. This case illustrates that the determination depends on the facts of each particular case. Some factors might include:

  • character of employment (e.g. physical labour, managerial work);
  • employee’s length of service;
  • age of the employee;
  • availability of similar employment, having regard to the experience, training and qualifications of the employee.

Other factors considered when determining reasonable notice include:

  • manner of the employee’s dismissal;
  • improper allegations of cause made by the employer about the employee;
  • conduct of the employer and employee both before and after the termination;
  • existing provisions in the employment contract regarding termination.

How Employers Limit their Obligations

Although notice that is reasonable often equates to amounts much higher than statutory minimums, it is possible for employers to limit their notice obligations by including clear, written terms in an employment contract. Employees who agree to the stated terms regarding the notice period in the employment contract may, in effect, waive their right to contest the notice period provided by the employer.

For related case studies and more information on Reasonable Notice, search our blog.

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