COVID-19 cases are on the rise and businesses are once again facing increased restrictions from public health officials. Employers who have faced very difficult decisions over the past seven months like temporarily laying-off and terminating employees may be facing these decisions again. This article explores what affect COVID-19 may have on the determination of reasonable notice of termination entitlements at common law.
FACTORS AND PRESUMPTIONS
An employee who has not signed a valid written employment agreement that limits notice of termination entitlements to the statutory minimums is entitled to reasonable notice of termination when terminated without cause or when constructively dismissed. To determine what constitutes “reasonable notice”, one must look to the common law. When a former employee challenges the amount of notice of termination, or payment in lieu of notice, that they are offered by their former employer, the Courts will consider a variety of factors known as the “Bardel factors” that originated in the case of Bardal v. Globe & Mail Ltd.  O.J. No. 149. The Bardel factors include the following:
the person’s length of service;
the characteristics of their job;
their age; and
the availability of similar employment.
Historically, “the availability of similar employment” factor has been coupled with a presumption that finding similar work in higher-skilled positions is more difficult than finding similar work in lower-skilled or service positions. This presumption has, at times, translated into shorter notice periods for lower-skilled or service employees but has also been challenged in previous case law.
CHALLENGING THE PRESUMPTION ON NOTICE PERIODS
In Byers v. Prince George (City),  B.C.J. No. 1757, the Court increased the notice
entitlement of a 55-year-old parking attendant with a grade seven education from four to eight months on the basis of low prospects of finding new employment. In Bramble v.
Medis Health and Pharmaceutical Services Inc.  N.B.J. No. 307 (NBCA), the
Court argued employees in low-skilled positions have just as much difficulty finding
reemployment than those in high-skilled positions. More recently in Ram v. Michael
Lacombe Group Inc.  B.C.J. No. 246, the Court awarded 12 months’ notice to a
Burger King employee with 24 years of service.
HOW WILL THE COVID-19 PANDEMIC AFFECT COMMON LAW NOTICE?
Service industry and lower-skilled employees have been some of the most affected by
the unemployment and uncertainty brought on by the COVID-19 pandemic. While we
have not yet seen just how the Courts will approach challenges to common law notice
entitlements arising from COVID-19 related terminations, it will not come as a surprise if
the Courts follow the reasoning in cases like Byers and Bramble and award longer
notice periods to service and lower-skilled employees in light of the challenges of finding
similar employment that have been amplified by COVID-19.
Given the current heightened uncertainty, we strongly recommend that employers seek
legal advice when facing decisions involving employee terminations. If you have any
questions or concerns or are interested in discussing common law notice entitlements in relation to specific employees, please contact us at (604) 736 9791 or email Alex
Disclaimer: This article is not intended to serve as, or should be construed as legal advice, and is only to provide general information. No portion or use of this article will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, please get in touch with us.