• Alex Robertson

COVID-19 and Reasonable Notice of Termination

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. [1960] 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), [1998] 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. [1999] 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. [2017] 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.


Contact Us

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

Robertson ar@dwslaw.ca

_________________________________

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.

THE FIRM | TEAM | PRACTICE AREASARTICLES | CASES/FILES | PRIVACY POLICY | TERMS OF USE | CONTACT

901-1788 West Broadway, Vancouver, BC, V6J 1Y1

Phone (604) 736-9791| Fax (604) 736-7197

Derpak White Spencer LLP | All Rights Reserved

This site is for educational purposes only and should not be used as legal advice. For legal advice please consult one of our lawyers directly.