Employee Termination: How Much Notice Is Enough?

When it comes to employee terminations, it's important that employers fully understand their rights and responsibilities. Missteps in the termination process can lead to uncertainty and confusion, or worse, litigation and a big payout to the employee for wrongful termination. When it comes to termination without cause, employer exposure to liability can be protected by the simple inclusion of a notice provision in the employment contract.

While many believe that the minimum standards set out in the Employment Standards Act of British Columbia will apply unless otherwise stated, this is not the case. If you do not have a contract which clearly states that the employer will never pay more than the minimum standards set out in the Employment Standards Act of British Columbia, you run the risk of incurring large and unpredictable liabilities upon termination.

A recent employment law decision from the Supreme Court of British Columbia highlights the importance of having written agreements between employers and employees which address termination pay or "notice" of termination.

Greenlees v. Starline Windows Ltd., 2018 BCSC 1457

In this case, the employer (Starline) did have a written contract in place, however, the contract did not contain a notice provision, meaning that there was no reference to an agreed upon notice period. In his decision, Justice Gomery found that a 43 year old salesman, Mr. Greenlees, who had only been employed with Starline for six months, was entitled to six months of termination pay or "notice" upon his termination.

Starline had provided the employee with one week of notice when they terminated Mr. Greenlees (without cause), providing the minimum amount mandated by Section 63 of the Employment Standards Act of British Columbia (the "Act") which includes:

After 3 months - 1 week After 1 completed year - 2 weeks After 3 completed years - 3 weeks After 4 completed years - 4 weeks After 5 completed years - 5 weeks After 6 completed years - 6 weeks After 7 completed years - 7 weeks After 8 completed years - 8 weeks

(The Act does not require payments beyond 8 weeks for any of length of service greater than 8 years.)

Because Starline had no contractual provision limiting Mr. Greenless' entitlement to the Act's Section 63 notice, Mr. Greenless was entitled to claim notice pursuant to the 'common law', an approach that can result in very large and unpredictable amounts of notice being awarded to a terminated employee.

Extenuating...