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Working through the notice period

you are firedLet’s begin with a point that comes as surprise to many employees and employers: there is nothing legally wrong with providing an employee with working notice of their dismissal and requiring that they continue to attend at work and perform their duties throughout the notice period.

We all recognize that the “norm” is to provide some sort of severance package. That can involve a lump-sum payment, or salary and benefits continuance, with or without a clawback in the event that the individual obtains new employment before the end of the notice period. However, the default at law, whether it be in accordance with employment standards legislation or common law, is to provide “notice”. What that means is that the employer notifies the employee that their employment will be coming to an end at a specified date in the future. In other words, the employer can advise the employee on January 1, 2016, that their employment will end on April 28, 2016.

Whether or not that is sufficient notice in the circumstances is a separate issue; however, legally, that is an appropriate way to provide notice of dismissal. If the employer proceeds in that way, then the employee is required to attend at work as usual and to carry out their duties appropriately. Essentially, the status quo is to continue. The only exception is that the employer is required to provide the employee with reasonable opportunities to seek new employment. This can involve allowing them time to submit applications, make telephone calls, send emails or other correspondence, and to take time off in order to attend interviews. The key word, as is often the case, is “reasonable”; the employee cannot take advantage of this, and the employee should also provide the employer with reasonable notice of the time that they will require. If they do so, then the employer must be reasonable in responding to such requests.

Generally speaking, if the employee does find employment during the notice period and resigns, the employer’s obligations come to an end. However, employers should make sure their offers are within the confines of an appropriate “reasonable” notice period in the law. The British Columbia case of Zaraweh v. Hermon, Bunbury & Oke, for example, recognized that an employee had a cause of action against her employer for providing her with an unreasonable working notice period. This was despite the fact that the employee had effectively repudiated the employment contract by refusing to work during the notice period and suing the employer.

A more recent case, Giza v. Sechelt School Bus Service Ltd., affirmed that while failing to work during the notice period evinces an intention to not be bound by the employment contract, an employee will not be deprived of his right to damages where the employer has breached the contract in providing inadequate notice.

Of course, there are many contexts in which working notice will not be appropriate. In some, the nature of the individual or the relationship between the parties is such that it will not be viable to have them continue attending at work, as they may well poison the workplace and destroy the morale of others. In other cases, there will be a legitimate concern of sabotage or other misconduct on the part of the dismissed employee. It is important to remember that employees working through a period of notice can be dismissed for cause just like any other employee. The threshold for establishing just cause for dismissal will be the same as it always is, which is relatively high. However, employees should not feel as though they are untouchable during a period of working notice.

Working notice can be particularly effective in situations where the dismissal is entirely unrelated to the individual, but is the result of corporate downsizing or change. For example, when an organization must close an entire department, it is often viable to ask the employees in that department to continue working for a period of time in order to assist in the shut down or transition period. I typically recommend that the employer offer a lump-sum payment at the end of the period of working notice, which will be conditional upon the employee continuing to attend at work and carrying out their duties appropriately. In such circumstances, the employees should not feel personally slighted, as it will be clear that the decision to dismiss was based upon corporate or economic realities. By providing them with an incentive to continue working, the situation can often be quite successful. I have worked with several clients who have successfully engaged in such a process.

I discussed this issue previously in my First Reference Talks blog post dated August 4, 2011. As I mentioned in that case, there are some who think that “working notice is an institution almost invariably predestined to fail”, as Mr. Justice Donnelly of the Ontario Superior Court of Justice stated in Elg v. Sterling Doors. In many cases, it is. However, I always encourage employers to consider their options and not proceed with a package automatically.

If the employer does provide working notice, sometimes issues arise when the employee refuses to continue working, or attends at work but engages in blatant misconduct. If an employee refuses to attend at work, then they can be dismissed for cause, or they can be deemed to have abandoned their employment. Either way, their entitlement to any notice, termination or severance pay will come to an end should they quit during the notice period. Similarly, as mentioned above, they can be dismissed for cause in appropriate circumstances.

As I stated into 2011, my view is that working notice is appropriate in certain circumstances. What do you think?

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Stuart Rudner

Employment Lawyer at Rudner MacDonald LLP
Stuart Rudner is a leading HR Lawyer and a founding partner of Rudner MacDonald LLP, a firm specializing in Canadian Employment Law. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is the author of You’re Fired! Just Cause for Dismissal in Canada, a textbook and database of summary dismissal cases published by Carswell. Read more
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