legal words
Without Cause Cases Likely
to get Tougher for
Employers
REASONABLE NOTICE IS HARDER TO PREDICT
By Mark Repath
baranq/Shutterstock.com
In the great majority of cases involving
dismissed employees, the first question
employers want answered is: what
is my potential liability? The exposure
to employers in wrongful dismissal cases
consists mostly of the need to provide
a payment in lieu of reasonable notice,
but also, to a lesser extent, legal fees and
costs. Often, the challenge becomes trying
to forecast the appropriate amount of
reasonable notice, particularly where an
employee has a common law entitlement.
It has never been easy to predict an
appropriate period of common law reasonable
notice for any given employee.
However, historically, lawyers have been
able – with a good deal of accuracy – to
inform their clients as to a range of what
reasonable notice will be for a particular
employee, regardless of whether the matter
is litigated or not.
Unfortunately, a number of recent cases
have left some lawyers questioning their
traditional approach to predicting reasonable
notice, as their conclusions as to what
is reasonable in the circumstances have
been markedly different from the court’s
ultimate assessment. Put simply, the
factors that affect a determination of reasonable
notice pursuant to the common
law are expanding, and therefore estimates
based on a review of case law that emphasizes
the traditional factors alone will
be insufficient; some courts are deeming
HRPATODAY.CA ❚ OCTOBER 2015 ❚ 13