How Must Notice Be Communicated (Effective Notice of Termination)
Summary
Notice of termination is effective only if it would lead a reasonable person to conclude that their employment will end on a specific future date. A warning of possible dismissal, mixed or uncertain messages, or continued employment past the stated date will not suffice.
General Principles
Notice is a binary concept: either it is provided or not.1 Communication that is “almost notice” will not constitute effective notice of termination.2
The onus of proving that notice of termination was provided rests upon the employer who seeks to raise it as a defence to an action for damages for wrongful dismissal.3
Test
The test for determining whether effective notice of termination was provided is whether the purported notice “would lead a reasonable person to conclude that their employment will end at a specific future date.”4
To be effective, notice of termination must be “clear and unambiguous”5, “specific and unequivocal”6, and must be clearly communicated to the employee”7. Effective notice of termination must also include the final termination date.8 However, it has been held that, where no specific final termination date is provided, the purported notice of termination must at the very least “spell out clearly that the employment will end” to be effective.9
No particular words or formal language are required.10 In practice, courts have looked at the employee’s length of service and the context of the employment relationship when assessing whether the wording in a purported notice was effective. The focus is on whether the employer’s intention to terminate the employment relationship is clear.11
Application
Where the employee is merely warned that they will possibly or probably be terminated at a later date, such communication was held to be ineffective notice.12
Where the employer creates uncertainty regarding the employee’s employment status by raising expectations of alternate possibilities of employment, such communication was held to be ineffective notice.13
Where the employee continues to remain employed after the specified termination date has passed, such communication was held to be ineffective notice.14
Where the employee is provided a letter stating that their employment will end shortly, and that letter does not provide a specific termination date, this may support an inference that the requirement of specific notice has not been met.15 However, all circumstances must be considered in such an instance.16