Determining the Period of Reasonable Notice - Is there a Rule of Thumb?

I am truly honoured to have been asked to speak at the Barreau du Québec conference L'ABC des cessations D'emploi et des indemnites de depart on May 5, 2006 in Montreal.  I'll be speaking on "Les cessation d’emploi et les indemnités de départ : tendances en Common Law" (roughly translated - terminations in the common law provinces). I'm really looking forward to this, though it will be a challenge as the presentation will be entirely in French.

As I am drafting my paper I thought I'd post sections of it as I go.  The first section deals with how we determine the period of reasonable notice in common law provinces and what factors are considered.  I'll be discussing a couple of sub-issues such as whether there is a "rule of thumb" that can be applied.  So here's what I've got so far under this heading.

Is there a “Rule of Thumb”?

On occasion employers (and employees) looking for some formulaic basis for determining the period of reasonable notice, raise the “month-per-year-of-service” rule of thumb. They ask whether it’s true that an employee is entitled to a reasonable notice period of one month of notice per year of service. The issue has been considered by the Courts who have, with some exceptions, rejected the “rule of thumb” approach to notice determination. This should not be surprising since “no two cases are identical” and, further, determining the period of reasonable notice is more “art than science”.

But “certainty” and “predictability” are not easy concepts to shake off and, the “rule of thumb” continues to be discussed from time to time. While there are cases where a month (or more) per year of service represents the appropriate period of reasonable notice of termination, the Courts have clearly expressed that this determination must be made on having regard to the particular circumstances of each case and that rules of general application are, by their very nature, contrary to the nature of reasonable notice.

The Ontario Court of Appeal, for example, in  Minott v. O'Shanter Development Company Ltd. squarely considered the following issue:

… should courts calculate the period of reasonable notice to which an employee is entitled if dismissed without cause by using the rule of thumb that one year's service equals one month's notice?

The Court held that the “rule of thumb” approach is deficient and inappropriate and is contrary to, for example, the more fluid and flexible approach first enunciated in Bardal. 

While some courts indicated and sometimes continue to suggest, that there might be a “rule of thumb” for reasonable notice of one month per year of service, the vast majority of common law courts have have rejected this view, preferring the “tried and true”, though unscientific and uncertain, assessment based on the traditional Bardal criteria. This latter view was reinforced by empirical study, which revealed that in fact junior employees tended to receive in excess of one month per year of service, and senior employees tended to receive less than one month per year of service. That being the case, the practice of providing one month per year of service was in fact accurate only for mid-service employees.

The “rule of thumb” approach should be abandoned. As the Court states in Minott, it is defective in that it puts unwarranted emphasis on one of the Bardal factors (“length of service”) at the expense of all of the others, while, at the same time, introducing a measure of rigidity into an exercise that should be fluid and flexible having regard to the particular circumstances. Although, it might be argued that this undermines the goals of predictability, certainty and consistency, it can also be argued that the very nature and purpose of the period of reasonable notice requires an approach that is neither predictable, certain or consistent.