This is Part II of #WorkLawWednesday Series “I was fired. What are my options?”, aimed at providing information on the various questions that arise in the context of terminations.
This week’s blog provides an introduction to the concept of working notice, and focuses on three key issues: (1) how much notice is an employee entitled to, (2) what are an employee’s obligations during the working notice period, and (3) what are the employer’s obligations during the working notice period.
As explained in Part I, an employer who terminates an employee without “just cause” is required to give the employee notice of termination of their employment. An employer can satisfy this obligation by providing “working notice” or “pay in lieu of (in place of) notice.”
It is the employer’s choice whether they provide “working notice” or “pay in lieu.”
“Working notice” is when an employer tells an employee that their employment will end after a given date and the employee is required to continue working for the duration of the notice period. Employers are required to provide working notice in writing within the minimum periods set out in the applicable labour standards legislation.
How much working notice is an employee entitled to under labour standards legislation?
In Nova Scotia, the Labour Standards Code sets out the minimum amount of working notice that employers are required to give a provincially-regulated employee who is being dismissed without cause.
| If the employee has a period of employment of | The employer must give |
| Less than 3 months | No notice |
| 3 months or more but less than 2 years | 1 week notice |
| 2 years or more but less than 5 years | 2 weeks notice |
| 5 years or more but less than 10 years | 4 weeks notice |
| 10 years or more | 8 weeks notice* |
*Employees whose period of employment is 10 years or more may only be terminated without cause in certain circumstances.
In Nova Scotia, if sufficient working notice is provided, an employer has no duty to pay extra money to a provincially-regulated employee beyond their normal wages for days worked and any accumulated vacation pay.
For federally-regulated employees, the Canada Labour Code prevents employers from terminating employees with a period of employment of 1 year or more without cause or without reason.[1]
If a federally-regulated employee has a period of employment of 3 months or more but less than one year, or the employer has a reason for terminating the employment, such as lack of work, an employer is required to give the employee a minimum of 2 weeks notice.
In addition to 2 weeks notice, federally-regulated employees with a period of employment of 1 year or more that are terminated without cause but for a reason, such as lay off due to lack of work, are entitled to severance pay of 2 regular days wages for each full year they worked for the employer.
What is an employee required to do during a “working notice” period?
An employee must remain ready and willing to work during the working notice period.
While the purpose of notice is to give an employee time to prepare for their termination and to search for another job, an employee is required to mitigate any loss of income as a result of the loss of their employment, which includes continuing to work during the working notice period.
What is an employer required to do or not do during a “working notice” period?
After an employer has given an employee notice, the employer is not permitted:
- to reduce the employees pay, hours of work, or other conditions of employment, or
- to require the employee to use their remaining vacation during the notice period.
In addition to an employer’s obligations under labour legislation, employers also have a common law obligation to provide an employee reasonable working notice. Working notice may be considered be unreasonable if an employee is not able to search for a job during that period. To search for a job, an employee needs both a reasonable amount of notice and a reasonable amount of time during the notice period to search employment.
In Wood v. CTS of Canada Co., 2017 ONSC 5695 (CanLII), the Ontario Superior of Court of Justice held that the working notice period provided by the employer was not reasonable as the employees were required to work excessive overtime for the duration of the notice period which prevented them from finding alternative employment.
For more information please contact Nicola Watson, Pink Larkin Associate and author of Part II of this Series. Stay tuned for #WorkLawWednesday Series “I was fired. What are my options?” – Part III: Termination Clauses in Employment Contracts. Subscription to our feed can be found at the bottom of this page.
#WorkLawWednesday: every second Wednesday Pink Larkin answers general questions about employment and human rights law. This is not intended to be legal advice and should not be relied on as legal advice.
[1] Wilson v Atomic Energy of Canada Ltd. 2016 SCC 29 (CanLII)