Employment Law

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Employment Law

Termination without cause is a situation where an employer terminates an employee for reasons that are not related to the employee’s performance or conduct. Employers are allowed to terminate employees without cause as long as they provide notice or pay in lieu of notice. There are many different factors that can influence the notice period or pay in lieu of notice.

The Alberta Employment Standards Code outlines a statutory minimum in terms of notice periods and payments, but an employee may be entitled to a higher amount of severance under the common law. Factors that can influence the amount of severance an employee may be entitled to are length of service, age of the employee, position and level of responsibility, salary and benefits, economic climate, mitigation, and potentially others.

Typically, when an employer terminates an employee, they ask for release paperwork to be signed and returned. An employee has the right to seek independent legal advice before signing that paperwork so that they are aware of their rights and entitlements, as well as their obligations under
the release.

Frequently Asked Questions

  1. As an employee in Alberta, you have several rights under the Alberta Employment Standards Code. The code governs areas such as:
    • Minimum wage, hours of work, overtime pay, vacation pay, leaves of absence, termination pay, notice, protection from discrimination etc.
  1. An employer does have the right to terminate an employee without cause, as long as they provide reasonable notice or pay in lieu of notice.
  2. The amount of notice or pay required depends on how long the employee has worked for the employer. For example, according to the Alberta employment standards code, employees who have worked for an employer for between 90 days and two years are entitled to at least one weeks’ notice or pay in lieu of notice. Employees who have worked for an employer for more than two years are entitled to more notice or pay in lieu of notice, up to a maximum of 8 weeks.
  3. Alternatively, an employer can offer the employee a severance package. This is typically a lump sum payment that is meant to compensate the employee for the loss of their job. The amount of the severance package can depend on several factors.
  4. Employees may be entitled to more than the Employment Standards Code allows, under certain circumstances, under the common law.

An employee can make a claim against their employer for wrongful termination if they believe they were terminated unfairly or without just cause.

  1. Some key factors the court may consider include:
  2. Length of service: the longer an employee has been employed by an employer, the more likely the employee is to be entitled to a higher severance amount.
  3. Age: older employees may be entitled to a higher severance amount because it may be more difficult for them to find comparable employment after being terminated.
  4. Position and responsibilities: the more senior the employee’s position, the more likely they are to be entitled to a higher severance amount.
  5. Availability of alternative employment: if the employee is able to fund alternative employment relatively quickly, this will likely be taken into account. If similar positions are readily available, this may decrease the amount of severance offered.
  6. Mitigation efforts: an employee has a duty to mitigate their damages by making reasonable efforts to find alternative employment. If the employees fails to make these reasonable efforts, this may reduce the amount of severance they are entitled to.
  7. Other factors may be taken into consideration as well.

a.       A non-compete agreement is a contract between and employer and an employee that restricts the employee’s ability to work for a competing business for a certain period of time after leaving the employer. These agreements are typically used to protect an employer’s trade secrets, confidential information and customer relationships.

 

b.       As long as the terms of the non-compete are not too onerous, they are generally enforceable. They must be reasonable in terms of their duration, geographic scope, and activities they restrict. 

a.       If an employee was laid off due to COVID-19, there are different rules that apply to their severance entitlement.

b.       The Alberta Employment Standards Code dictates maximum durations for temporary layoffs, but there time periods differ for temporary layoffs related to COVID-19.

c.       The employee must pay termination pay once the maximum temporary layoff duration is met, and the layoff then becomes permanent.

d.       The period of temporary layoff can be extended beyond the maximum days if the employer makes regular payment to or on behalf of the employee, such as continuing to pay wages, employee pensions or benefits, and the employee agrees to these payment in lieu of a firm limit of the length of the layoff. Termination pay is then payable when these payments in lieu cease. All of these factors influence the date of termination, therefore affect the amount of severance that can be claimed.

e.       COIVD-19 increased the number of layoffs and terminations, but employees are still entitled to reasonable notice or pay in lieu of notice. COVID-19 may have impacted the availability of similar employment, which could affect the severance amount that an employee may be entitled to. 

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