Termination without Cause

[Tammy Mack]

#96927

Forum: Community

Are we in compliance if we provide 8 weeks severance in lieu of notice to terminate a manager without cause? Employee worked for company as an inscope labourer from 1999 to 2022. Employee took a management position (out of scope).

Recently employee advised Employer of intent to resign within 6-8 weeks due to family relocation; however, has since advised Employer that this timeframe is now undetermined as they are trying to sell their property. Employer began process of replacement based on the initial 6-8 week timeline for resignation and was in final stages of hiring process when Employee refused to give a firm resignation date.

So my first question stands: Is Employer in compliance if employee is provided 8 weeks severance in lieu of notice.

[Haley O’Halloran]

#96928

Hi there! I have divided my answer into questions so it is a bit easier to read, but there is a direct answer at the end:

1. Employment Standards (Minimum Requirements)

If this employee is provincially regulated (most employees are, unless federally regulated like banks, telecom, airlines, etc.), the applicable provincial ESA sets the minimum statutory notice or pay in lieu.

For example, in BC or Alberta, after such long service (since 1999), the maximum statutory entitlement is capped (e.g., 8 weeks in BC, 8 weeks in Alberta).

Providing 8 weeks’ severance in lieu of notice would satisfy statutory minimums in those provinces. So yes, you’d be in compliance with minimum standards if you pay 8 weeks’ severance in lieu.

2. Common Law (Reasonable Notice)

Courts often award more than ESA minimums under the doctrine of “reasonable notice,” unless you have a well-drafted employment contract that clearly limits entitlement to ESA minimums.

Factors: employee’s age, length of service, character of position, and availability of similar employment.

This employee has:

~25+ years of continuous service,

-Moved into management role,

-Likely mid-to-late career,

-Specialized experience.

Courts could easily find 12–24 months’ notice reasonable in a wrongful dismissal claim. This means that while you’d be statutorily compliant, you may still face common law exposure unless the contract explicitly limits entitlements.

3. Effect of Employee’s Intended Resignation

The fact the employee intended to resign complicates things. However:

If the employee never gave a firm resignation date, the resignation is not legally effective. The employer can’t rely on an indefinite “I’ll leave sometime” as a resignation.

Since you acted on the initial 6–8 week comment, but the employee withdrew the firm date, it remains a termination without cause on the employer’s side.

4. Compliance vs. Risk

Yes, you’re compliant with ESA by offering 8 weeks’ severance.

No, this doesn’t shield you from a wrongful dismissal claim under common law—the employee could pursue significantly more notice/severance.

If you have a written contract limiting notice to ESA minimums, you are in a strong position.

If not, it’s a risk management decision: some employers negotiate a package (e.g., 6–12 months) to reduce litigation exposure.

Answer to your direct question:
Providing 8 weeks’ severance in lieu of notice does meet statutory minimum requirements, so yes, you are “in compliance.”
However, unless the employment contract limits severance to those minimums, the employee could claim reasonable notice at common law, which would likely be much higher given 25+ years of service.

-HRInsider Staff

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