In a recent employment law case of Zheng v China Southern Airlines Company Limited, 2023 BCSC 1763, a former employee sued their employer for wrongful dismissal, highlighting the importance of reasonable notice being provided by employers to employees. Let’s delve into the analysis and outcome of this case.
What is reasonable notice?
Reasonable notice in employment law refers to the period of time an employer must provide an employee before terminating their employment without cause. It serves as a safeguard to allow the employee adequate time to find new employment and mitigate the financial impact of sudden job loss. The duration of reasonable notice is determined by various factors, including the employee’s length of service, age, position, specialized skills, and the availability of alternative employment opportunities. Courts consider these factors on a case-by-case basis to determine a fair and reasonable notice period, aiming to balance the interests of both the employer and the employee. The failure of an employer to provide reasonable notice is called a “wrongful dismissal”.
How do you determine what a reasonable notice?
In British Columbia, reasonable notice ranges depending on a number of factors from a few weeks up to 24 months. It is a context driven decision. In the case being looked at here, the court looked at four primary factors to help it determine reasonable notice.
Character of the Employment
The court examined various factors outlined in the case law to determine the appropriate notice period. It noted that employees with specialized skills typically merit longer notice periods to secure comparable employment. The employer’s role in inducing the employee to leave secure employment can also influence the notice period. In this case, the court found that the employer sought and induced the employee to work for them because of her expertise and the relatively niche market of travel between Vancouver and China. The employee in contrast left her secure position largely due to the employer’s attempts to recruit her.
As a result, the court found that the character of the employment militated towards the upper end of the notice period.
Length of Service and Age
The employee had served the company for nine years and was 57 years old. Longer service and older age generally warrant extended notice periods due to potential challenges in finding alternative employment.
Availability of Alternative Employment
Given the niche nature of the employee’s expertise and the impact of the COVID-19 pandemic on the airline industry, finding alternative employment proved difficult. Despite a nine-month job search, the employee could not secure a similar position, underscoring the limited availability of alternative opportunities.
Assessment for Failure to Provide Reasonable Notice
The court referenced several precedents to determine a reasonable notice period, considering factors like age, length of service, and the nature of the employment. Ultimately, it awarded a 20-month notice period based on these considerations.
This means that the employer was required to provide the employee with salary, benefits, and other income like earnings that the employee would have earned over that 20-month period.
Outcome
The court calculated the damages, including the employee’s salary, benefits, and special damages, resulting in a total of $98,832.75. Prejudgment interest was also awarded on this amount.
This case underscores the importance of understanding reasonable notice in employment law, especially concerning factors like the nature of employment, length of service, age, and availability of alternative opportunities. Employers should be mindful of these considerations when terminating employees to ensure fair treatment and compliance with legal standards. Employees should know their rights to reasonable notice and compensation for an employer’s failure to adhere to their obligations.
