Termination of your employment is never ideal. Before initiating a wrongful termination claim, it is essential to consider the key legal factors that may apply. Below, we provide answers to common questions raised by employees facing termination.
Can you terminate “Without Cause” in Alberta?
Yes – your employer can terminate you without cause, meaning they don’t need to provide a specific reason for your termination, as long as they provide proper notice or pay in lieu of notice, and the termination is not based on discriminatory grounds, or during a job-protected leave under the Alberta Employment Standards Code (the “ESC”).
What does it mean if your employer terminates you “With Cause”?
In Alberta, a “with cause” (also referred to as “just cause”) termination occurs when your employer determines that you have engaged in serious misconduct, or persistent failure to meet your job expectations, that is severe enough to justify immediately dismissing you without notice or pay-in-lieu of notice. This is a high bar, and the burden is on your employer to demonstrate that just cause exists for termination.
Common examples of serious misconduct that could justify termination with cause include: fraud, dishonesty, theft (including time theft), insolence and insubordination, serious incompetence, chronic absenteeism or lateness, competing with the employer’s interest, misrepresentation of qualifications, harassment, and wilful disobedience.
What is “Notice” or “Pay in Lieu of Notice”?
Alberta employment law requires that your employer provide you with written termination notice. The notice period depends on the length of your service. The minimum notice requirements are outlined in the ESC, and your employer can choose to provide you with working notice, pay in lieu of notice, or a combination of both.
The minimum notice required in Alberta is as follows:
| Notice period | Length of employment |
| No notice | Less than 90 days |
| 1 week | More than 90 days but less than 2 years |
| 2 weeks | 2 years but less than 4 years |
| 4 weeks | 4 years but less than 6 years |
| 5 weeks | 6 years but less than 8 years |
| 6 weeks | 8 years but less than 10 years |
| 8 weeks | 10 years or more |
There are certain circumstances and industry exceptions where your employer is not required to provide you with termination notice or pay in lieu of notice. Examples of specific industries and circumstances can be found in the ESC and its regulations.
Are you entitled to more than the minimum notice?
You may be entitled to more than the minimum termination notice or pay in lieu of notice specified in the ESC. This is commonly referred to as “severance pay”. Unlike other Canadian provinces, the Alberta ESC does not address or require severance pay. Instead, further notice or pay in lieu of notice (severance pay) is determined under the common law.
What is “common law”? Common law refers to legal principles developed through court decisions in Alberta, and across Canada, that govern employment relationships, particularly in cases where there is no written employment contract. The four main factors the Court will consider when determining if you are entitled to additional notice or pay in lieu of notice are:
- Your length of service. Longer service will generally warrant a longer notice period.
- Your age at the time of termination. Older employees will often face greater difficulty in securing new employment, which may warrant a longer notice period.
- The character of your employment. This considers your position and responsibilities with your former employer. Senior or specialized roles may warrant a longer notice period.
- The availability of similar employment, having regard to your experience, training and qualifications. Difficulty finding comparable employment in the current job market may warrant a longer notice period.
These factors are referred to as the “Bardal factors”.
What if you have a written contract of employment? Employers may limit your right to additional common law notice or pay in lieu of notice within the terms of your employment contract. Your employer can not limit your right to the minimum notice under the ESC. It is important to seek legal advice regarding your written employment contract and the enforceability of any provisions purporting to limit your entitlement to additional common law notice.
What should you do next?
If you have been terminated, it is important to seek legal advice to help navigate the complexities of employment law and to determine your potential entitlements. Prowse Barrette LLP (previously Prowse Chowne LLP) is a respected name in all levels of court, tribunals, and commercial institutions when it comes to delivering quality employment advice. If you need an employment lawyer in Alberta, we are here to help. Contact us today to book a consultation.