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Employees across Canada are entitled to financial protection if they have been dismissed from their employment. This comes in the form of reasonable notice (or pay in lieu of notice) of the termination. The idea is to provide sufficient time for an employee to find another role.

The amount of notice to which an employee is entitled depends on the specifics of the individual’s employment. For this reason, determining the appropriate reasonable notice period when the relationship comes to an end can be challenging.

A recent court decision has added a potential new wrinkle in determining appropriate notice, particularly for those managing pregnancy and being on a related leave of absence.

What is Reasonable Notice?

The term “reasonable notice” refers to the amount of notice, or pay in lieu of notice, that is awarded to an employee following the termination of their employment.

When determining the reasonable notice period for a dismissed employee, a court may take a number of factors into account. However, the four (4) primary factors to be considered in assessing the employment relationship are as follows:

  • Length of service;
  • The character of the employment;
  • The employee’s age; and
  • The availability of similar employment, given the employee’s experience, training and qualifications.

As stated, while courts will generally rely on these four (4) factors when assessing a dismissed employee’s entitlements at common law, this is not an exhaustive list.

Specifically, recent case law has made it clear that in determining the reasonable notice period, courts are also willing to consider an employee’s pregnancy at the time of termination.

Impact of Pregnancy on Reasonable Notice Period

A recent case, Nahum v. Honeycomb Hospitality Inc., directly addressed pregnancy and the provision of reasonable notice of termination.

The former employee, Ms. Nahum, was dismissed without cause after approximately four and a half (4.5) months of employment with the employer, Honeycomb Hospitality Inc. Upon termination, the company provided Ms. Nahum with the equivalent of one (1) week pay in lieu of notice and extended her benefits for one (1) month.

At the time of dismissal, Ms. Nahum was 28 years old, about five (5) months pregnant, and held the role of Director of People and Culture, a mid-level management position in the Human Resources department.

The judge determined that the employee was entitled to five (5) months’ notice or pay in lieu of notice.  In reaching this decision, the judge concluded that it was reasonably likely that the pregnancy would have a negative impact on her ability to find alternative employment. The judge subsequently concluded that pregnancy is a relevant factor in assessing a dismissed employee’s reasonable notice period.

What is the Impact for Employers & Employees?

The purpose of a reasonable notice period is to provide sufficient time for a dismissed employee to obtain new and comparable employment.

This case, therefore, recognizes that pregnancy can create barriers for an employee with respect to searching for new employment and that it may have a negative impact on an employee’s ability to secure alternate employment right away.

Employees may therefore have valid claims for wrongful dismissal if the notice period does not reflect the status of being pregnant.

If you believe you have been wrongfully dismissed and/or are seeking advice in relation to how your pregnancy will affect your entitlements upon termination, please contact Toronto employment lawyers, Sultan Lawyers, at 416-214-5111 or via email at khayward@sultanlawyers.com.


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