| "Common law" exists in all provinces other than Quebec, and does not only refer to marriages. "Common law" is law developed by judges through tradition and precedent. Employees who have been terminated without just cause, have a common law right to "reasonable notice" of termination.
By way of example, Employee Jones might be entitled at common law to reasonable notice in the amount of 18 months. The employer's obligations to provide reasonable notice to Jones can be satisfied in any of the following ways:
- notify Jones that his employment is terminated effective 8 months from now.
- pay Jones the equivalent of 18 months' remuneration in lieu of notice.
- notify Jones that his employment is terminated effective months from now, and pay Jones a further 12 months lump sum in 6 months, on the termination date.
Still remaining, is the task of calculating reasonable notice.
Reasonable Notice is calculated quite differently at common law than the statutory method. Unlike the statutory method which is tied to a strict, inflexible formula based solely on length of continuous service, the common law method involves the application of various standard factors which are intended to bring about a notice period which is considered to be reasonable based on the characterstics of the individual employee.
There are many factors which, depending on the individual employee, may be relevant in assessing reasonable notice.
The most common factors to consider are:
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The calculation of an individual's reasonable notice period is subject to the overriding consideration of Mitigation.
Once all of the above factors have been taken into consideration,
you are now ready to calculate your common law entitlement: |
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