common law reasonable notice
The common law reasonable notice period is calculated by examining a set of well-established legal principles that stem from court decisions rather than legislation. When an employee is terminated without cause and there is no enforceable termination clause in their contract, courts will determine the length of reasonable notice the employer must provide. This period can be provided as working notice or as compensation in lieu of notice. The purpose is to give the employee adequate time to find comparable employment while maintaining financial stability during the transition.
The starting point in calculating the common law reasonable notice period is a case called Bardal v. Globe & Mail Ltd. This landmark decision laid out the factors that courts continue to use to this day. These factors include the employee’s age, length of service, character of employment, and the availability of similar employment. Each of these elements is considered on a case-by-case basis, and no single factor is determinative. Instead, courts aim to assess the totality of the circumstances to arrive at a fair and reasonable notice period.
Age is a key consideration because older employees may have more difficulty finding new employment, particularly in a competitive or rapidly changing job market. Similarly, the length of service is important, as longer tenure often implies deeper ties to the organization and potentially greater difficulty adjusting to new environments. The character of employment refers to the employee’s position, seniority, and responsibilities. A senior executive, for instance, may be entitled to a longer notice period than a junior or entry-level worker. Lastly, the availability of similar employment considers the job market conditions, economic factors, and the employee’s qualifications or specialization.
How is common law reasonable notice period calculated?
There is no mathematical formula to determine the common law reasonable notice period, but courts often award between one and two months of notice per year of service, with a general cap of 24 months, except in extraordinary circumstances. However, this is not a strict rule and should not be taken as a guarantee. In fact, short-service employees in high-ranking or specialized positions may receive generous notice periods, even if they have only worked for a few years. Conversely, long-service employees in roles with readily available alternatives may receive a more moderate award.
Another aspect that affects the calculation is whether the employment contract contains a valid and enforceable termination clause. If such a clause is present and complies with minimum employment standards, it can override the common law reasonable notice period. If not, common law principles will prevail, and the court will use its discretion to assess a fair duration of notice.
In practice, the compensation during the common law reasonable notice period usually includes not only base salary but also benefits, bonuses, commissions, pension contributions, and any other form of compensation the employee would have received if they had worked through the notice period. As such, employers and employees must take the calculation seriously. Understanding how this period is determined helps both parties navigate terminations more fairly and avoid unnecessary legal disputes.
