Factors Impacting the Notice Period

Written on behalf of Peter McSherry

The Notice Period – Black Magic ?

The determination of the common law reasonable notice period has always been considered somewhat of an art rather than based on a scientific formulaic approach. The traditional factors that court have considered (also known as the Bardal factors) include age, length of service, and the nature of the position held on termination, to name the more significant elements. There is no upper cap on what the common-law reasonable notice period should be, although the general high-water mark has been generally held to be in the range of 24 months.

More Senior – More Notice?

It had long been accepted that the more senior the position, the longer that the notice period should be for the person in that position. This long-standing belief has been shaken by many recent rulings which have considered a contrary view, namely that more junior employees lacking particular skills such as a trade or vocation may nonetheless qualify for relatively significant notice awards.

This issue was considered recently by the Ontario Superior Court in McLeod v 1274458 Ontario Inc.[1] The employee, McLeod, was 40 years old, earned $40,000 a year, and had been employed for 18 years as a mover. He lacked any special skills or unique qualifications. The Court commented upon societal changes that had taken place since the Bardal factors were first recognized in the landmark case on notice of Bardal v Globe and Mail:

When Bardal was decided in 1960, it was to some extent a different work environment than today. The longer notice period for senior management employees or highly skilled and specialized employees and a shorter notice period for lower rank or unspecialized employees as suggested by the defendant may have been appropriate in 1960. If anything, in today’s world and economy, that has changed. Those with skills and specialties change jobs frequently and rapidly. Those without skills and specialties, I believe, find it more difficult to find employment.

For these reasons, the Court set the fair notice period for McLeod as 12 months.

Inducement

A further factor  court will consider is that of inducement, in a context where the employer took the initiative to contact the individual when he or she was securely employed elsewhere and not in the search of new employment. This factor often increases the notice period for those persons even if the employment was short-term.

This issue was considered in the recent decision of the Alberta Queen’s Bench in Toole v Northern Blizzard Resources. The employee had been employed with his prior company for 21 years when he was contacted by a search firm to leave his then employment and join a new company. The recruiter’s mandate had been to find a person with at least ten years’ experience. The employee was then terminated 19 months later due to economic issues.

The Court considered that in assessing the impact of inducement on the notice period, there is a spectrum of context which must be examined. This case was determined to be on the more severe side of this grid. The Court stated:

The concept of “inducement” of an employee to leave secure employment involves a spectrum of facts. At one end is an employee who is already on working notice when he or she is contacted by a recruiter. That employee would be very motivated to pursue the opportunity, because his or her job is not secure. At the other end of the spectrum is an employee who is securely employed and not interested in leaving for a new job until the recruiter offers some specific inducement, such as a signing bonus, more valuable benefits, or a better salary. Most cases are somewhere along the spectrum.

In such a case, the Court does not “tack on” the prior service record, but will consider the inducement factor to increase the usual notice period to be awarded to a person of relatively modest employment history. In this case, 10 months was awarded.

A Work of Art

The determination of the proper notice period is an art, not a science. The issues affecting the notice period are seemingly infinite. We touched on the more significant ones only in this blog. When facing termination, it is important to obtain legal advice on your particular situation to understand the likely expected range of notice a Court may award. Keep in mind that the determination of notice is only the first step. You must also be diligently looking for employment during this time period – more on this later.

Let Legal Advice Guide Your Actions

If you are facing a termination, get advice on the notice period – it is fundamental and complex. Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues and assert your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.

[1] The decision of Hood J. is not presently on Canlii.