Casual legal: Working notice or hardly working

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated. 

By Andrew Skeith 

Reynolds Mirth Richards Farmer LLP 

Alberta Municipalities Casual Legal Service Provider  

If an employer terminates an employee without cause, they are required to provide that employee with a minimum amount of notice of termination pursuant to s 56 of the Employment Standards Code. Depending on whether the employee has a written termination clause, the employer may also be required to pay additional amounts of notice at common law. 

Typically, this amount of notice along with any additional common law notice required will be paid out as an additional lump sum on the employee’s final pay as “pay in lieu” of notice. 

However, s 55 of the Employment Standards Code allows an employer to provide the required termination notice as either prior written notice, pay in lieu of notice (referred to as “termination pay” in the Code), or a combination of both. In other words, an employer can keep paying an employee for the duration of their notice period, and receiving the benefit of that employees services for that period of time, rather than just paying them out. This is commonly referred to as “working notice”. At the conclusion of the working notice period, the employee’s employment automatically comes to an end without any further notice obligations on the employer. 

Working notice is an effective way to minimize the financial impact of a without cause termination on an employer. However, the decision to utilize working notice should be approached with caution. Requiring an employee who has been fired to do important job tasks can produce mixed results. If the termination has produced an acrimonious relationship, it is rarely a good idea to require an employee who has been terminated to remain in the workplace. There can be situations where working notice can be provided, and the option always remains at any time during that working notice period to terminate early and payout the balance of the notice period. That can be a way of reducing the actual severance paid in less acrimonious situations where the employee’s continued employment offers some value to the employer. 

Every termination should be considered based on all of the circumstances, and if in doubt, seek legal advice as to whether a working notice period or a combination of working notice and severance should be used or considered. 

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1.800.661.7673 or email casuallegal [at] abmunis.ca (casuallegal[at]abmunis[dot]ca) and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact riskcontrol [at] abmunis.ca (riskcontrol[at]abmunis[dot]ca), or call 310.MUNI (6864) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.