All professionals who deal with family breakdown, separation, divorce and matrimonial discord understand that there are complex realities and personal circumstances behind every relationship coming to an end. This is where the process comes into play. The process is often the part that is put under a microscope when looking backward to see if it was fair. Unless you fairly negotiated, shared information, had proper understanding on your side and can demonstrate that those items took place; you may be in trouble.
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.
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
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