Minimum notice limitations are enforceable.

• Author: Bowal, Peter

Introduction

In Canada, employment is a legal contract. The collective agreement in unionized workplaces represents the ultimate comprehensive contract between employer and employer. It sets out the rights and obligations between the parties, including how employment-related disputes are to be resolved.

The concept of a contract makes intuitive sense because both employer and employee voluntarily agree upon obligations which they must fulfill. Individual (non-unionized) employment contracts may be oral or written, or a bit of both. Often, they incorporate terms by reference from employment manuals and legislation from the taxation, human rights, minimum standards and occupational health and safety fields. There are about two to three times as many workers who enter into individual contracts of employment as there are unionized workers.

Individual employment contracts can be of fixed-term duration such as a summer job or time-sensitive projects. However, by far, most workers start and continue to work indefinitely until one party--employer or employee--quits the other. Contract law implies a term that either party can terminate that contract by giving reasonable notice.

Employees can quit their jobs and they should give their employers reasonable notice of quitting so the employer can find replacement workers. Employers may terminate their employees on reasonable notice--this serves as a period for them to find another job. The notice model is viewed as fair to both parties. By contrast, non-unionized workers in the United States are not viewed as being in a contract, but rather a mere relationship that exists at the will of both parties. If one party wants out, one can quit. This brings the relationship to an immediate end. Notably, this "at will" approach, while highly responsive, simple and efficient, provides no security or protection for workers.

While the Canadian notice model for indefinite employment appears more compassionate, it suffers a major flaw: what notice is reasonable in each worker's different circumstances? Employers, employees and judges might all have assorted perspectives on reasonable notice. This uncertainty leads to extensive, costly litigation.

This article describes a solution to this uncertainty problem in reasonable notice, at least as it relates to employers dismissing their employees. We start with distinguishing between minimum and reasonable notice of employment termination.

Minimum versus Reasonable Notice

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