Part I: Reasonable Notice

This is Part I 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.


‘Severance’ is a term that is commonly used in conversations about terminations. However, this term can be misleading if it suggests employees are always entitled to a severance package. Rather, the law recognizes that employees are entitled to notice of termination of their employment unless there is “just cause” for immediate dismissal. Employers can elect whether to provide “working notice” or to end the employment relationship immediately and provide pay in lieu of notice that would be equivalent to what the employee would have earned during the notice period. Part Two of this Series will provide more information on “working notice”.

In either event, the length of the notice period is calculated in the same way. There are two sources of notice entitlements for dismissed employees: labour standards legislation and judge-made “common law” from court decisions. In Nova Scotia, the Labour Standards Code sets out the minimum notice requirements for an employee dismissed without cause in section 72:

  • (a) one week’s notice in writing to the person if his period of employment is less than two years;
  • (b) two weeks’ notice in writing to the person if his period of employment is two years or more but less than five years;
  • (c) four weeks’ notice in writing to the person if his period of employment is five years or more but less than ten years; and
  • (d) eight weeks’ notice in writing.

For federally regulated employees, the Canada Labour Code sets out the minimum notice requirements. Under section 230(1), an employee with service between 3 months to one year is entitled to two weeks pay in lieu of notice.

Generally speaking, an employer can terminate an employee without a reason as long as it provides proper notice. However, if an employee’s length of service was longer than ten years, and the reason for termination does not fall within a specified exception, then section 71(1) of the Labour Standards Code provides a form of “statutory tenure”. That is, the employer cannot terminate an employee without just cause, and the employee has a right to reinstatement. Federally regulated employees have the same just cause protection after one year of service. The options available to a tenured employee will be discussed in a later post in this Series.

The main difference between the rights under the Code and the common law is that notice periods under the common law tend to be longer. Courts consider a number of factors in determining “reasonable notice”:

  1. character of employment;
  2. length of service;
  3. age of the employee; and
  4. availability of similar employment.

As a result, providing advice on appropriate “reasonable” notice at common law is highly fact-specific. You should consult an employment lawyer about the specific factual circumstances around your dismissal.

It is also important to understand that employees can waive their rights to common law reasonable notice by signing an appropriately drafted employment contract. Part III of this Series will provide more information on employment contracts and what you need to know about termination clauses.

If an employment contract was never signed or never existed, then a dismissed employee can expect to receive notice in accordance with the common law “reasonable” notice. The only formal legal recourse available to obtain notice above the minimum statutory notice under labour standards legislation is to start a claim in court. However, most matters can be settled through negotiation without taking that step.

Lastly, it is also important to note that Nova Scotia’s Human Rights Act protects employees from discrimination on the basis of a protected grounds. If discrimination contrary to the Code was a factor in the termination, the dismissed employee may consider a human rights claim. A human rights Board of Inquiry has broad remedial powers, including the power to order the employee be reinstated.

For a recent example of a court decision where reasonable notice was considered, see Sletmoen v Nafco Manufacturing Co., 2017 BCSC 1726 where the British Columbia Supreme Court awarded 16 months pay in lieu of notice for machine operator with 18 years of service and who was 52 years old at the date of termination.

For more information please contact Balraj Dosanjh, Pink Larkin Associate and author of Part I of this Series. Stay tuned for #WorkLawWednesday Series “I was fired. What Are my Options?” – Part II: Working Notice. 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.