Rule of Thumb > Common law reasonable notice for indefinite employees is 1 month of pay per year of employment. Courts infrequently adhere to this rule of thumb and tend to award damages that are more or less than the employee's theoretical entitlement under the rule of thumb.
(III) Comon Law Notice and the Bardal Factors
The determination of common law reasonable notice involves the consideration of the Bardal Factors. In Bardal v. Globe and Mail Ltd., the Court referred to a number of factors which must be considered in determining the appropriate length of notice for a dismissed employee.2 Such factors include:
- Character of employment (the prestigious nature of the position);
- Length of service;
- Age of the employee;
- Availability of similar employment; and
- Qualifications of the employee.
In theory, these factors are given equal weight, but depending on the circumstances, courts may give more weight to some factors over others.
Extending the Notice Period
In addition to the Bardal Factors, other circumstances may lengthen the duration of reasonable notice.
- An employee who relocated at the behest of the employer is entitled to a larger award of damages than he/she would have been entitled to otherwise;3
- If an employee was induced to enter the employment contract;4 or
- If an employee is terminated during an economic recession, the court acknowledges the increased difficulty in finding a new job, and thus may require a longer notice period.5
Probationary and Fixed-Term Employment
Generally, reasonable notice of termination does not apply to probationary employment. To justify the dismissal of probationary employees, an employer must only show the following:
- The employee was given a reasonable opportunity to demonstrate his/her suitability for the job;
- The employee was found not suitable for the job; and
- The employer's decision to dismiss was based on an honest, fair, and reasonable assessment.
Generally, reasonable notice does not apply to fixed-term employment contracts. At the expiry of the fixed term, the employment relationship ceases, and neither party has a duty or obligation to renew the contract.
If the employer terminates a fixed-term contract prior to its term, the employer must pay compensation equivalent to the income the employee would have earned during the contract, unless the contract expressly stipulates the sum payable on termination or the employer has cause for termination.
Statutory Requirements during the Notice Period
According to Section 60(1) of the ESA, an employer...
- Shall not reduce the employee's wage rate or alter any other term or condition of employment;
- Shall in each week pay the employee the wages the employee is entitled to receive, which in no case shall be less than his or her regular wages for a regular work week; and
- Shall continue to make whatever benefit plan contributions would be required to be made in order to maintain the employee's benefits under the plan until the end of the notice period.
According to subsection (3), if the "employer fails to contribute to a benefit plan...an amount equal to the amount the employer should have contributed shall be deemed to be unpaid wages."
1 Machtinger v. H.O.J. Industries Ltd.,  1 S.C.R. 986 (S.C.C.).
2 (1960), 24 D.L.R. (2d) 140 (Ont. H.C.J.).
3 McNamara v. Price Wilson Ltd. (1979), 12 B.C.L.R. 300 (B.C. S.C.)
4 Wallace v United Grain Growers  3S.C.R. 701.
5 Johnston v. Queen's Park Hospital (1983), 44 B.C.L.R. 13 (B.C. S.C.)