Calculating Reasonable Notice – Breaks in Service
Non-unionized employees in British Columbia who are terminated by the employer without cause are entitled to reasonable notice of the termination. Reasonable notice can be given as pay in lieu of notice, as working notice, or as a combination of both.
These employees are entitled to statutory pay or working notice pursuant to the Employment Standards Act, and unless they are bound by an employment agreement that says otherwise, they may also be entitled to additional “common law” reasonable notice that is enforceable by the courts.
An employee’s reasonable notice period is usually calculated in weeks or months. In calculating an employee’s entitlement to reasonable notice, the courts will consider the length of service of the employee, their age, and their ability to find other work. The employee’s length of service tends to be a highly determinative factor, but in some cases, disputes may arise as to how the employee’s length of service is to be calculated. It is typical of many long service employment relationships that there will be breaks in the employee's service. Typically, an employee will want their entire employment history counted when determining the length of service, while the employer is interested in minimizing their severance obligations.
In some cases, the court will ignore a break in service when calculating reasonable notice. To make such a determination, the court will consider the length of the break relative to the length of service, the conduct of the employer in respect of the break (i.e., was the employee temporarily forced out of employment by the employer), as well as any evidence that shows that the employer intended to treat the employee’s service as continuous. Typically, if the employee willingly leaves their job for another and is away for a considerable time before returning, the employment will not be considered as continuous.
If you are a long-serving employee who has been terminated from your employment, it is crucial that you seek legal advice. An employer seeking to terminate a long serving employee should also be cautious as issues such these, as the amounts at stake as pay in lieu of notice could be substantial.
W. Eric Pedersen is a lawyer practising in Velletta & Company's civil litigation department. Mr. Pedersen has worked with the civil litigation department to achieve successful outcomes for individuals and businesses, appearing in Provincial Court, Supreme Court, and the British Columbia Court of Appeal