Specific and Unequivocal Notice of Termination 



Fall 2006 - (Employment and Labour Brief)

Employment and Labour Brief

A contract of employment that does not specify how much notice or severance is to be given upon termination can be terminated at common law by the provision of reasonable notice. What constitutes reasonable notice is fact dependent, but a number of factors such as age, length of employment, the type of employment and position held are all taken into account by judges in determining what is "reasonable." An employee may be given working notice, provided the notice of termination is specific and unequivocal and clearly communicated. For example, advising an employee that his or her job will end in two weeks but holding out the prospect of employment in another position is, without more, equivocal and will therefore not be found to be sufficient notice at law. Employers must be careful in drafting termination letters to ensure that they meet the appropriate standard.

Recently, in Gregg v. Freightliner Ltd. (c.o.b. Western Star Trucks) [2005] BCCA 349, the British Columbia Court of Appeal upheld the trial ruling that the company's notice to its 150-plus employees was effective. The employees were advised that the plant would be shut down on September 30, 2002 "unless you are advised otherwise." The letter further indicated the possibility of being offered employment with a related company in Oregon. An employee argued that this notice was not unequivocal. The Court of Appeal disagreed. The Court held that neither the possibility of employment with a related company nor the possibility of earlier termination affected the clear advice that the plant would close September 30. There was objectively no holding out of a promise of continued employment with the employer, despite the possibility of future employment.

These cases are fact specific, but what is clear is that it is certainly possible to discuss alternative employment and yet retain the specificity of the notice of termination. It must, however, be made clear to the employee that, despite the possibility of future employment, the employment relationship will end on the specified date. In this case the future was certain as the plant was actually closing.