Statutory vs. Common Law Termination Notice
Posted by Graeme Maitland — filed in Business Law
Termination from employment, more commonly known as getting fired, can be a minefield of potential problems. Employees may have rights they do not know about, and companies might end up in court because of poorly worded contracts. Key among employee rights is how much notice, or pay in lieu of, they get before termination.
There is legislation that exists to guide corporations on how much notice an employee must be given, but there is also the common law which normally exceeds the legislated minimums.
The Employment Standards Code
The Government of Alberta has passed the Employment Standards Code which provides for the basic necessities and minimums to which all employees in Alberta are entitled to at work. Termination is dealt with in Division 8 and notice specifically in Section 56.
If you have been employed for more than 3 months (the minimum you have to be employed for this section to effect you) but less than 2 years, you are entitled to one week notice or pay in lieu of. This continues escalating until you are entitled to the maximum of 8 weeks notice.
Here is a handy chart:
| Period of Employment | Minimum Notice Required |
| 3 Months – < 2 Years | 1 Week |
| 2 Years – < 4 Years | 2 Weeks |
| 4 Years – < 6 Years | 4 Weeks |
| 6 Years – < 8 Years | 5 Weeks |
| 8 Years – < 10 Years | 6 Weeks |
| 10 Years or more | 8 Weeks |
Common Law Notice
But the Employment Standards Code on its own just provides the minimum amount of notice. In some cases, there is also the common law notice period requirement.
It is a myth that this period is one week for every year worked. This is not true and should not be something relied on by either an employee or employer.
The actual common law notice period is based on a series of factors called the Bardal Factors after the Ontario High Court decisions of Bardal v. The Globe & Mail Ltd. This case identified several factors the Court must take into consideration when determining the common law notice period. Some fo these factors are:
- the character of their employment
- their length of service
- their age
- and the availability of similar employment, having regard to their experience, training, and qualifications
If you believe you have been terminated without due notice or are facing a lawsuit over termination of an employee, speak to one of the lawyers at Aarbo Fuldauer LLP in Calgary.
Address: 3rd Floor, 1131 Kensington Road NW, Calgary, AB, T2N 3P4
Phone: (403) 571-5120
Email: [email protected]