|Journal||Canadian Labour and Employment Law Journal|
In this paper the authors provide a review and critique of existing legal standards and methods, at common law and under employment standards legis- lation, for determining the length of notice to which employees are entitled as a result of without-cause termination. They argue that, at common law, the factors relied on to determine the amount of termination notice contribute to systemic bias and power imbalances between employers and employees, while fostering the illusion of individualized assessment. As well, the regime is inaccessible to low- and middle-income employees due to the costs of litigation. Minimum statutory notice in Ontario, which relies solely on the factor of length of service, is heavily discounted in relation to the common law, and suffers from poor enforcement and widespread non-compliance. In light of the shortcomings of the common law and statutory regimes, the authors conclude that there is a clear need for reform. While other proposals for reform have been advanced, the authors contend that they focus too heavily on length of service, are likely to perpetuate the problems associated with the existing systems, and fail to comprehensively take into account the primary purpose of notice - to provide employees with a "cushion" between termination and re-employment. The auth- ors then set out their proposal for a "Middle Course" approach to determining length of notice, which would be based on a series of objective factors related to the estimated time needed by a dismissed employee to obtain re-employment. It would be implemented by replacing the existing formula under employment standards legislation with one that would enable notice entitlements to be deter- mined in a more predictable, rational and equitable fashion.