When employment ends, many people assume they will receive a severance package. In reality, Alberta employers are required to provide advance notice of termination, not necessarily severance. Severance often functions as a payment equal to what the employee would have earned during their notice period. While severance is more common, employers are legally permitted to meet their obligations by giving advance notice of termination, also known as working notice.
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Why Do Alberta Employers Provide Severance More Often Than Working Notice?
Employers may choose working notice for various business reasons. However, it can create challenges in the workplace. Morale may decline, productivity often drops and employment relationships can become strained. Even so, working notice is a valid legal option. If you have been given working notice instead of severance, it is important to understand your rights and the protections available to you.
How Much Working Notice Am I Entitled To in Alberta?
The length of your working notice entitlement depends on where your rights originate. There are three potential sources of notice entitlements in Alberta.
- Employment contract terms
- Employment Standards code minimum notice
- Common Law reasonable notice
If your employment contract contains language stipulating the specific length of your working notice entitlement, you can expect that your employer will likely provide you with at least that much working notice. This amount maybe more than the statutory minimums prescribed by the Employment Standards Code, but it will not be less than this amount.
If your employment contract does not contain any language regarding your entitlement to notice, there is a common law presumption of an implied right to reasonable notice.
There is no fixed calculation for determining reasonable notice.
Your Protected Rights During Working Notice in Alberta
Alberta law provides significant protections for employees during the working notice period. Your employer cannot simply change the rules because you’ve been given notice.
No Changes to Employment Terms
In Alberta, once an employer gives working notice, they cannot unilaterally change the terms of your employment. The Employment Standards Code expressly prohibits:
- Reducing your earnings
- Altering your conditions of work
- Changing your job duties without agreement
- Modifying your benefits or compensation
- Placing you on an improper performance improvement plan
Constructive Dismissal During Working Notice
Substantial unilateral changes by the employer during the working notice period may constitute constructive dismissal.
What is constructive dismissal? An employer constructively dismisses an employee where it unilaterally breaches an essential term of the contract and a reasonable person would conclude the employer no longer intends to be bound.
Constructive dismissal can result from:
- A single major change
- A series of cumulative acts
Substantial changes to compensation, responsibilities, role or work environment during working notice may amount to constructive dismissal.
If your employer has changed the terms of your employment, you can connect with a Calgary constructive dismissal lawyer at Cashion Legal for clarity, strategy, and peace of mind.
Recent Court Decision Constructive Dismissal Case Study
A recent court decision an employer removed an employee’s responsibilities and significantly altered the nature of his role after he received notice of termination. The Court determined these changes were not minor or merely operational. They fundamentally altered the character and status of the employee’s role, contrary to the express assurances in the notice letter.
Viewed cumulatively and objectively, a reasonable person would conclude the employee was constructively dismissed during the working notice period.
Insufficient Working Notice and Wrongful Dismissal
Receiving working notice does not automatically prevent you from bringing a wrongful dismissal claim.
The key question is whether the amount of notice provided was reasonable.
If the working notice period is too short, you may still be entitled to:
- Additional pay in lieu of notice
- Damages for wrongful dismissal
- Compensation for lost benefits during extended notice period
For working notice to be effective, it must be clear, specific and unequivocal about the final date of employment. If employment continues past the stated date, the notice may become invalid.
Your Duty to Mitigate Damages
If you are considering a wrongful dismissal claim, you must continue making reasonable efforts to find comparable employment throughout the working notice period. Even though you are still working, you must actively explore new opportunities. If your mitigation efforts are insufficient, your damages may be reduced. The employer carries the burden of proving a failure to mitigate.
Protect Your Rights During Working Notice
If you have been given working notice or recently learned your employment will be ending, understanding your rights is essential. The law provides significant protections and you may have more options than you realize. You can learn more about wrongful dismissal in this article.
If you are facing termination or working notice, we can help you understand your rights and plan your next steps.
Book a consultation today with Cashion Legal to get personalized employment law guidance.