Extending Work Past Expected Date of Termination Resets Notice Period
April 1, 2022
The loss of employment can be a significant source of stress for most people, especially considering people rely on their jobs to provide income for their day-to-day essentials. This is one of the reasons why employers are obligated in most cases to provide notice of termination to someone if that person is not being terminated with cause, such as poor performance or a violation of workplace rules.
But what happens if an employee is given notice of termination and the termination date comes and goes without any actual loss of employment? Does the employer still have to provide notice, or was the original notice sufficient? This was a question recently put towards the Court of Queen’s Bench of Alberta.
Employee given 18-months’ notice
The employer is an equipment manufacturer with locations in both Brooks and Bassano, Alberta. The employee had worked in their Bassano location from July 4, 1984, until July 3, 2020, as a heavy-duty mechanic. He was 60 years old at the time of his termination.
In early 2018 the employer decided to turn their Bassano location into a retail-only site and move all their maintenance and servicing operations to their Brooks location. In May of that year, the employer provided the employee with a notice that his employment would terminate in about 16 months, on September 11, 2019, which is when they anticipated ceasing maintenance at the Bassano location.
Of course, we probably would not be discussing the case today had things gone as planned. The wrinkle came from the delayed closure of the service and maintenance activities at the Bassano location. As the anticipated termination date came closer, the employee asked about the status of things. He had heard that the lease of the Bassano location had been renewed. That had not been the case, but he was told that he “was being kept on,” notwithstanding the notice of termination he was given in May 2018.
The employee stayed on and worked without any termination discussion until June 3, 2020 (almost nine months after the planned termination date of September 11, 2019). The employer, who relied on the May 2018 termination notice, gave the employee one month’s notice of termination. However, he was offered a position at their other location after it was discovered he had retained counsel. The employee rejected this offer and sued for wrongful termination, seeking pay in lieu of notice of termination.
Employee says previous termination notice should still count
The employer took the position that the notice of termination from May 22, 2018, should have survived their decision to keep the employee past the planned termination date. However, internal emails which were shown in court indicated the employer was not sure if that was true or not.
The court turned to Alberta’s Employment Standards Code which states, “a termination notice is of no effect if an employee continues to be employed by the same employer after the date specified for termination of employment.”
The employer responded to this by stating that the employee was told his continued employment was only temporary and only intended to last until their service operations were eventually relocated. The employee’s version of events was that he was given no details as to how long his employment was going to last.
The court sided with the employee on this topic, finding that the employer provided no direct evidence to support its position. Regardless, the court also found that even if the employer’s version of events had been true, it would not have counted as an effective notice of termination. The court referenced a decision from the Nova Scotia Court of Appeal, which found that for a notice period countdown to start, the notice must be “specific, unequivocal…and clearly communicate(d) to the employee that (their) employment will end on a certain date.”
Did the employee have a duty to mitigate?
The employer also argued that the employee had a legal obligation to minimize any potential damages by doing what he could to find similar employment as soon as possible. If he had accepted their offer to relocate, he wouldn’t have lost his job at all.
The court found that while the position offered to the employee would have been very similar to the job he had been working, his commute would have been significantly different. His old job was only a four-minute drive from his home. The employee, who was 60 years old at the time, would have had to travel over 104 km each day to the new location. The court found the employee’s refusal reasonable because of this.
Having found that the employee was not given a reasonable period of notice, the court then considered the notice period. This is important because it would be used to calculate how much pay in lieu of notice the employee would be entitled to. The employee argued for 24-months’ notice, while the employer said 18 months’ notice was more reasonable. The court found that the employee was 60 years old when terminated and that he had worked for the employer for over 30 years, making it essentially his only employer. The court found the employee entitled to 24 months’ notice without an advanced location and without similar employment opportunities available.
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