• First Reference
  • About us
  • Contact us
  • Blog Signup 📨

First Reference Talks

Discussions on Human Resources, Employment Law, Payroll and Internal Controls

  • Home
  • About
  • Archives
  • Resources
  • Buy Policies
You are here: Home / Employee Relations / Working notice: A refresher

By Simon Heath, BA, MIR, LLB, Heath Law | 2 Minutes Read September 9, 2013

Working notice: A refresher

Most of the time when employers look to terminate an employee they opt for pay in lieu of notice. Yet pay in lieu of notice can be costly, it can discourage mitigation and it may hurt productivity (if a suitable replacement has yet to be found). An often overlooked approach is providing working notice that satisfies both statutory and common law obligations.

Common reasons working notice is overlooked is because employers are scared about an “unproductive” and “unhappy employee” who remains at the workplace. However, a properly structured termination based on working notice can be significantly less costly and allow for an effective transition.

At common law, the employer has the option of providing

(a) working notice,
(b) pay in lieu of notice or
(c) a combination of the two.

Only statutory severance pay in Ontario and in the Federally regulated Jurisdiction cannot be worked off—this must be paid at the end of a proposed working notice period.

Typically, employees dislike working notice for obvious reasons—namely, they dislike having to attend a workplace they have been terminated from. So one of the biggest benefits of working notice is it encourages the employee to secure comparable and alternate employment. Employers just have to be flexible and allow the employee time to mitigate by attending to job search duties and interviews during working hours.

Working notice should be considered in the following types of scenarios:

  1. Plant closures—it’s easy for employers when they know they are closing to eliminate part of (if not all of) their severance obligation through working notice.
  2. When there is still a need for the employee’s contribution at the workplace.
  3. When costs, and especially potential severance costs, are an issue.

When an employee decides to terminate an employee by way of working notice, they should also take advantage of the timing to remind the employee that they must still contribute and that the company still retains the right to terminate them for just cause for appropriate misconduct. If the working notice is not working, the employer can then consider a “for cause” or a “without cause” termination at that point. At all times, employers must be careful to keep working notice arrangements confidential.

Therefore, next time you are involved in a termination, consider whether working notice is an option to consider.

Simon Heath, BA, MIR, LLB
Principal of Heath Law, Employment Lawyers

  • About
  • Latest Posts
Follow me
Simon Heath, BA, MIR, LLB, Heath Law
Employment Lawyer and principal at Heath Law, Employment Lawyers
Simon Heath, BA, MIR, LLB, is the Principal of Heath Law, Employment Lawyers in Mississauga, Ontario. Simon represents both public and private-sector employers and employees (unionized and non-unionized) at all stages of the employment relationship with a focus in the areas of employment law, labour law and human rights law; these representations are made at all levels of courts and all administrative tribunals.
Follow me
Latest posts by Simon Heath, BA, MIR, LLB, Heath Law (see all)
  • What are the “exceptions” to the equal pay provisions of the Employment Standards Act - May 30, 2018
  • 5 employment law predictions for 2018 - December 20, 2017
  • Ontario Court of Appeal confirms offer of employment is consideration after an asset sale - November 22, 2017

Article by Simon Heath, BA, MIR, LLB, Heath Law / Employee Relations, Employment Standards, Payroll / canadian employment law, common law, common law notice, duty to mitigate, employee productivity, employment law, mitigation, pay in lieu of notice, Plant closures, properly structured termination, providing working notice, severance obligation, statutory and common law obligations, statutory severance pay, termination, termination notice, terminations, working notice, workplace

Share with a friend or colleague

Get the Latest Posts in your Inbox for Free!

Electronic monitoring

About Simon Heath, BA, MIR, LLB, Heath Law

Simon Heath, BA, MIR, LLB, is the Principal of Heath Law, Employment Lawyers in Mississauga, Ontario. Simon represents both public and private-sector employers and employees (unionized and non-unionized) at all stages of the employment relationship with a focus in the areas of employment law, labour law and human rights law; these representations are made at all levels of courts and all administrative tribunals.

Footer

About us

Established in 1995, First Reference is the leading publisher of up to date, practical and authoritative HR compliance and policy databases that are essential to ensure organizations meet their due diligence and duty of care requirements.

First Reference Talks

  • Home
  • About
  • Archives
  • Resources
  • Buy Policies

Main Menu

  • About First Reference
  • Resources
  • Contact us
  • 1 800 750 8175

Stay Connected

  • Facebook
  • LinkedIn
  • Twitter
  • YouTube

We welcome your comments on our blog articles. However, we do not respond to specific legal questions in this space.
We do not provide any form of legal advice or legal opinion. Please consult a lawyer in your jurisdiction or try one of our products.


Copyright © 2009 - 2023 · First Reference Inc. · All Rights Reserved
Legal and Copyright Notices · Publisher's Disclaimer · Privacy Policy · Accessibility Policy