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Employment Law: When the notice period should be increased?

Once an employer wants to terminate an employment agreement, they need to give a termination notice period to the employee. The period between the receipt of the letter of dismissal and the end of the work is called notice period. The Alberta Employment Standards Code establishes some situations where the termination notice is not required, such as, if the employment relationship is terminated for just cause, or when an employee has been employed by the employer for 90 days or less.

However, if none of the situations described in section 55 (1) of the Alberta Employment Standards Code are applicable, the employer must give a termination notice to the employee. Even if the notice period is mandatory, the duration of this time is variable, and several elements can affect this.

In Dias v. Paragon Gaming EC Co., 2010 ABPC 390, the Alberta Provincial Court, mentioning the factors outlined in Bardal v. Globe & Mail Ltd., established four different aspects that should be observed to determine a reasonable notice period:

  • The position of the employment
  • The age of the employee
  • The length of service
  • The availability of similar employment

The first factor that can directly affect the notice period duration is the position that the employee used to occupy. A position that requires supervisory skills, as well as skills in dealing with some specialized area, will probably suggest a notice period in the upper as distinct from the lower range. In other words, if the employee had occupied a high qualified or specialized position, the Court may increase the notice period.

Another factor that can contribute to increasing the notice period is the age of the employee at the end of the employment. Regarding this aspect, most of the time the Court will analyze if the employee was close to the age of retirement when the employment agreement was terminated, which can lead to an increase in the notice.

The length of service should also be considered as a relevant factor to determine the duration of the period notice. In fact, relatively short time of employment, such as less than a year, tends to limit the notice period. In Beauchemin v. Universal Handling Equipment Co. the Alberta Court of Queen’s Bench stated that the length of service for only 5 months “would be a factor ordinarily calling for a very short period of notice”.

As an example, the Alberta Court of Queen’s Bench, in Eberle v. Sunhills Mining Limited Partnership, held that the reasonable notice period should be 21 months, considering that the employee was 55 and had worked in a primarily supervisory position for nearly 33 years in the same company.

Lastly, the Court should also consider the availability of similar employment, regarding the experience, training and qualification of the employee. If positions similar to the previously occupied by the employee are immediate and widely available within the industry, there would be no reason for an increase in the notice period. 

Furthermore, there are some other factors that can increase the notice period, such as inducement. The Supreme Court of Canada in Wallace v. United Grain Growers Ltd., 1997 held the position that a wrongfully terminated employee who was induced to leave previous secure employment may be entitled to a longer notice period:

“According to one authority, many courts have sought to compensate the reliance and expectation interests of terminated employees by increasing the period of reasonable notice where the employer has induced the employee to “quit a secure, well-paying job . . . on the strength of promises of career advancement and greater responsibility, security and compensation with the new organization”. 

Nevertheless, it is relevant to note that some employment agreements expressly state that the notice period is limited to the terms of Division 8 of the Alberta Employment Standards Code. In these cases, the maximum amount of time of the notice’s period duration is 8 weeks if the employee has been employed by the employer for 10 years or more.

In Carrell v. Worley Parsons Canada Ltd., the Court recognized that the clause used in the employment agreement that limited the notice period to the time established in Division 8 of the Alberta Employment Standards Code was enforceable. Thus, the notice period could not be imposed for a duration longer than eight weeks.

“The clause used in this case clearly provides that “the notice period or (pay in lieu of notice) will be limited to the terms of Division 8″ of the Code. It was designed to confine the plaintiff to that compensation and in my view is enforceable while that agreement is in force.”

Please be noted that there are several factors that can contribute to an increase in the notice’s period duration, which means that not all cases will have the same resolution. The peculiarities involving each case need to be analyzed in order to determine a reasonable notice period. Please contact our experienced Employment Lawyers at 403-476-2011 or [email protected] to discuss your case. We are currently offering a promotional rate of $199 + GST for all employment-related initial consultations up to one hour. 

About Carolina

Carolina Albuquerque is a lawyer in Brazil who is currently pursuing her legal career to become a Canadian lawyer in the future. She has been accepted to the Law Program at the University of Calgary and will start her legal education in Calgary soon. She was a member of the team of lawyers that acted directly on Brazil’s greatest case of judicial bankruptcy, the one from Oi S.A, the third largest telecommunication company in Latin America. She is involved in volunteers programs that provide support for women. Her professional communication skills include a fluent level of English, advanced level of Spanish and native level of Brazilian Portuguese.

About Jae

Once Jae had finished his J.D. at the University of Saskatchewan, he knew right away to follow his entrepreneur path and to start “Shim Law” in 2014.  Jae has been growing his practices ever since – specifically in the fields of Employment Law and Family Law.

Jae is also a active member in the Korean community and frequently volunteers his time to help others.  If you’re in need of a Korean lawyer, please book a consultation with Jae using the button below.  

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