Most employers and employees know about the Employment Standards Act, and that when an employee is fired by an employer in circumstances without employee misconduct, the employer has to give or pay the employee notice of roughly 1 week per year of employment up to a maximum of 8 weeks (it varies a bit from this format in the first 2 years of employment).
But did you know that an employee can be entitled to more notice under the common law?
Under the common law, which is made from judges’ decisions over time, an employer has to pay or give an employee “reasonable notice” if the employer fires them in circumstances without employee misconduct.
The court calculates what is reasonable notice by considering the “Bardal Factors.” These factors are:
- The age of the employee (generally if the employee is nearing retirement age this will factor in to a longer notice period);
- The duration of employment (the longer the employment the longer the notice period);
- The degree of responsibility of the position (generally the more responsibility and difficulty associated with the job, the longer the notice period); and
- The availability of similar employment (if you are in a niche job where there aren’t any other jobs, then a longer notice period would be required than for a job with lots of job opportunities, such as sales).
The court says there is no set reasonable notice period and each case will be decided individually depending on the Bardal Factors. While there is therefore no set “notice period.” most awards trend to about 1 month per year of service under the common law versus 1 week per year of service under the Employment Standards Act. However, each case varies so it is important to get qualified legal advice from a lawyer unique to the facts of your specific situation.