Module 4 - Notice Requirements at Common Law

Question 1

Reasonable Notice

Answer 1

Refers to the amount of notice that is considered appropriate under the common law. It is informed by factors such as the employee’s age, length of service, and the availability of similar employment.

It is also Bardal factors

Question 2

Why would a court rule common law entitlements?

Answer 2

1. No or vague termination clause
2. No employment contract
3. Employment contract provides less than ESA requirements
4. Inducement of breach of contract
5. Bad faith present from employer

Question 3

How is common law entitlements decided?

Answer 3

Case by case basis. No universally accepted formula to determine this

Question 4

What are the 4 Bardal Factors?

Answer 4

Factors to consider common law notice length by employee’s:

1. Age
2. Length of service
3. Character of employment
4. Availability of similar employment given the employee’s experience, training and qualifications

Question 5

Are there other factors to consider common law entitlement?

Answer 5

Yes:

1. Health
2. Language skills
3. Pregnancy
4. Employer’s refusal to provide a recommendation letter

Question 6

Are there misconceptions or assumptions about common law entitlements?

Answer 6

Yes.

1. They don’t cap out at 12 or 24 months
2. Employees can receive a lot more depending on Bardal factors and especially if courts rule that employee was wrongfully dismissed

Question 7

What is wrongful dismissal?

Answer 7

When an employee was dismissed by an employer who did not comply with common law requirements or failed to provide reasonable notice or pay in lieu of reasonable notice.

Question 8

What are the impacts of wrongful dismissal?

Answer 8

Damages, litigation fees, fines and exponential common law notice to the employee