Working through the notice period

Once an employee has been given notice of termination, the usual rules of employment don’t always apply
By Stuart Rudner
|employmentlawtoday.com

What is an employer entitled to expect of employees that are working through their notice of termination? Do the employee’s obligations change? Can the employer expect full attendance, or is there a somewhat lower standard? Do they have an obligation to provide the employee with time to seek new employment? Can you terminate an employee for cause during the working notice period?

In

Kontopidis v. Coventry Lane Automobiles Ltd.

, Justice Karakatsanis wrote that “working notice is difficult on both the employer and employee and can lead to problems in the employment relationship. However, the employer is entitled to require full attendance and to impose reasonable conditions to ensure full attendance.”

These comments, if not considered in the context of the specific facts of that case, can be misleading. Other case law suggests that something less than “full attendance” is required during the notice period, when the dismissed employees are entitled to search for new employment.

In

Kontopidis

the employee was given four months’ working notice. After he received this notice, his attendance became a concern to the employer.

He was often absent, with no one knowing where he was, and he was unavailable to the new manager that he was supposed to be training.

As a result of these concerns he was given a written direction that he was to advise the secretary, in writing, or the general manager, in person, before leaving the premises during working hours. A few weeks later it was emphasized to him that he would be terminated if he did not comply with this direction.

A week after this warning, Kontopidis left the dealership at 11 a.m. and did not return. He did not advise the secretary or general manager that he was leaving, or where he would be. Kontopidis testified that he left to pick up a customer’s car, which was 15 minutes from the dealership, and that he took the car home, intending to bring it in the next morning.

He provided no explanation regarding his failure to return that day. When he arrived for work the next morning his employment was terminated for cause.

As quoted above Justice Karakatsanis found the employer was entitled to require full attendance during the notice period and Kontopidis’ behaviour provided just cause for termination. That an employee may be terminated for cause during a period of working notice should be without question, although at least one decision might suggest otherwise.

From the reasons set forth by Justice Karakatsanis, it does not appear that Kontopidis provided much in the way of an explanation for his poor attendance. There is nothing to suggest that he required time away from work in order to attend interviews or otherwise seek new employment.

Had this been the reason for his absence, the result might have been different. Justice Karakatsanis’ comments regarding attendance requirements during a working notice period must be taken in the context of previous cases, such as

Bramble v. Medis Health & Pharmaceutical Services Inc.

, in which the New Brunswick Court of Appeal considered a period of working notice during which the employee had no realistic opportunity to seek new employment. The court wrote that:

“…the primary objective of notice is to provide the dismissed employee with a fair opportunity to obtain similar or comparable employment. It follows that the weight to be given to a particular working notice will vary depending on the quality of the opportunity it gives the employee to seek an alternate position. In this particular case, the trial judge’s finding of fact that the respondents could not actively seek work during the working notice period deprives the latter of any legal value. As a result, no weight can legitimately be attached to it.”

In other words, the court confirmed that a working notice period during which the dismissed employee is not given the chance to look for new work is not a valid notice period. Justice Karakatsanis did not have to consider this issue in Kontopidis. However, his judgment should not be construed to mean that employers do not have to give dismissed employees the chance to seek new employment during the working notice period.

While a dismissed employee is required to continue to attend at work and perform his duties during the notice period, the employer must provide him with a reasonable opportunity to seek new employment.

Like reasonable notice, the exact requirements are somewhat vague and dependant upon the unique circumstances of each case. However, employers should bear in mind that they do have an obligation to provide an employee with time to find a new job; failure to do so might invalidate part or all of the notice that they provide.

For more information see:

Kontopidis v. Coventry Lane Automobiles Ltd.

, 2004 CarswellOnt 1902, 33 C.C.E.L. (3d) 131 (Ont. S.C.J.)

Bramble v. Medis Health & Pharmaceutical Services Inc.

, 1999 CarswellNB 270 (N.B. C.A.)

Stuart Rudner practices civil litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or srudner@millerthomson.ca.

Add Comment

  • *
  • *
  • *
  • *