How much notice should employees get before being let go?

Chances are, employees are entitled to what’s called “common law notice” a.k.a. “reasonable notice” before being let go. (Although employers are allowed to write employment contracts in such a way that the notice is much lower, it’s been estimated that about ninety-five percent of these contracts are void).

So: how long is this “reasonable notice” period that employees are probably entitled to?

It depends on several factors, the main ones being:

  1. The employee’s length of service. (Longer serving employees get more notice).
  2. The employee’s age. (Older employees typically get more notice).
  3. The “character” of the employee’s employment. (If it’s a niche occupation, it will be difficult for the employee to find another job, so courts will provide more notice).
  4. The availability of similar employment. (If there is not much similar employment out there, then it will take employees longer to find a job, and courts will again award more notice).

Regarding the availability of similar employment, it’s worth noting that the COVID-19 pandemic will almost certainly increase employees’ notice period. It is well-established that during a recession, where there is less employment available, employees are entitled to a greater notice period (see: Zoldowski v Strongco Corporation, 2015 ONSC 5485 (CanLII)). Given the unprecedented low availability of employment (as of August, 2020), this increased notice period will likely be even greater than in the case above.

Examples:

Fred the Fusion Reactor Specialist

  1. Service: 10 years of service.
  2. Age: 55 year old employee.
  3. Character of employment: fusion reactor research specialist. i.e. Very specialized skillset.
  4. Availability of similar employment: three known jobs in the country.

This employee would be entitled to about 10 – 16 months of notice. If they were making $100,000.00 per year, the range of an award would be between $80,000.00 and $130,000.00.

James the Jackhammer Operator

  1. Service: 5 years of service.
  2. Age: 28 year old employee.
  3. Character of employment: jackhammer operator. The skill set is transferable to many other types of work.
  4. Availability of similar employment: many other similar jobs exist.

This employee would be entitled to about 2 – 3 months of notice. If they were making $50,000.00 per year, the range of an award would be between $8,300.00 and $12,500.00.

Conclusion

Employees: Reach out to an employment lawyer to figure out what you’re entitled to.

Employers: If you draft your contracts carefully, you can avoid this liability. Reach out to an employment lawyer for assistance.

Disclaimer: This article is provided as an information resource. This article should not be relied upon to make decisions and is not intended to replace advice from a qualified legal professional. In all cases, contact your legal professional for advice on any matter referenced in this document before making decisions. Any use of this document does not constitute a lawyer-client relationship. Please note that this information is current only to the date of posting. The law is constantly changing and always evolving. I encourage you to reach out with any specific questions.

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