Focus On Gaps In Employment / Continuity Of Service

One of the key factors in determining the reasonable notice period on termination of employment is the length of the employee's service. Generally speaking, the longer the employee has worked for the same employer, the more notice the employee is entitled to receive (up to a limit).

Occasionally, the situation arises where there have been gaps in employment. An employee may have interruptions in his or her service for a variety of reasons, such as a leave of absence due to family responsibilities, a lay-off, or even a voluntary resignation to obtain alternative employment followed by a return to the original employer. These gaps in continuity can create uncertainties in determining the proper length of service for purposes of the reasonable notice period.

Whether a court will ignore the gap and treat the employment periods as cumulative, or will disregard the prior employment period and only count the most recent period, depends on a variety of factors. The factors are not always applied consistently, but some trends can be identified within the case law.

The following factors are the best predictors of how the court will treat gaps in employment:

The length of the gap in relation to the overall employment. The less significant the gap in the overall scheme of employment, the easier it is to ignore the gap and treat the employment periods as cumulative. The reason for the gap. The gap is more likely to be ignored where the leave is for family reasons or other matters beyond the employee's control, rather than due to a voluntary resignation to seek alternative...