Part Two: Employee Termination

Written by: Missy Garska

Employers have certain obligations to their employees upon termination of employment including providing reasonable notice of termination so that the employee can find alternative employment. To learn more about an employer’s obligations upon a with or without cause termination see our previous article.

Reasonable Notice

The Employment Standards Code (Alberta) only provides a minimum notice period; employees are presumed to have a longer period of reasonable notice. Courts attempt to conduct an individualized assessment by considering several important details, age, characterization of employment, length of service, and availability of similar employment, when determining the correct reasonable notice period.¹

When determining if an employee has received the correct severance, a lawyer will require the following details:

• age;

• salary, including bonuses, commissions, etc.;

• length of employment;

• specialized skills;

• level of seniority or supervisor role; and

• conduct of employer and details surrounding termination.

The above-mentioned factors determine the notice period an employee is entitled to. Due to the courts' discretion when determining a notice period, there may be a significant range of notice periods in decisions with similar facts. Employees are not required to accept the reasonable notice provided by their employer if it is not stipulated in the contract.

Human Rights Code and Employment Standards Code

Employers cannot terminate an employment contract on one of the enumerated grounds including: “the race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or of any other person.”²

Additionally, employers cannot terminate your contract if the employee has started parental leave, reservist leave, compassionate care leave, death or disappearance of a child leave, critical illness of child leave, long-term illness and injury leave, or domestic violence leave.³

You do not require a lawyer to file a complaint with Employment Standards Alberta or Human Rights Board.

Employees Responsibilities

When an employee is wrongfully terminated, they are still required to take all reasonable steps to find comparable, alternative employment during the reasonable notice period. Employees should keep detailed records of their efforts.

Employees are not required to accept substantially different employment from their former role. Courts will consider whether a position is comparable by considering the status, hours, and remuneration of the new position.

The duty to mitigate does not require immediate action. Employees have some time, about one to two months following a dismissal before they are required to begin fulfilling their duty to mitigate.⁴

Conclusion

Understanding the legal requirements of reasonable notice and the protections under the Human Rights and Employment Standards Codes is critical for employees facing termination. Courts consider multiple factors to determine appropriate notice periods, ensuring a fair assessment based on individual circumstances. Employees have rights against wrongful termination and protections for various personal attributes and leave situations.

*This Article is not intended to provide legal advice. If you have been dismissed with or without cause from your employment and have any questions or require assistance, please do not hesitate to contact any members of our Litigation or Employment team at SB LLP to discuss your situation.

1 Bardal v Globe & Mail Ltd, 1960 CarswellOnt 144 [ONHCJ].
2 Alberta Human Rights Act, RSA 2000, c A-25.5 s 7.
3 ES Code at sections 52 to 53.981.
4 Hansen v Altus Energy Services Partnership, 2010 ABQB 820 at para 51.