What is Notice of Termination?
In Ontario, when an employer decides to terminate an employee’s employment, the employer must, in the majority of cases, provide the employee with prior notice of termination or pay-in-lieu thereof.
How much notice or pay-in-lieu of notice is necessary is a question that can only be answered with reference to the specific facts of each case. For a general overview of employers’ obligations to provide notice or pay-in-lieu of notice, see “Notice of Termination: Minimum Requirements and Beyond”.
This article is concerned with a narrower issue: What constitutes notice of termination, and what is necessary to ensure that the notice is effective at law?
The court answered this question in Yeager v. R.J. Hastings Agencies Ltd. In that case, the employee alleged that he was wrongfully terminated from his job after 30 years of employment with the employer. Part of the employer’s argument was that the employee had been given sufficient notice of termination, such that his termination was not wrongful. In determining whether the employee had been given notice of termination, the court held that the following is required for notice to be effective at law:
- The notice of dismissal must be specific and unequivocal – this means that the employee must be made aware that his employment will come to an end on a specified date, and that the termination is not tentative or likely, but certain; and
- The notice of dismissal must be clearly communicated to the employee – a reasonable man must conclude, from the notice provided, that his employment will come to an end at a specified date in the future.
The employer bears the burden of proving that such notice has been given to the terminated employee.