Mar 31, 2016

Reasonable Notice Periods for Part-Time Employees

Stuart v. Navigata Communications Ltd., 2007 BCSC 463 (CanLII)

Summary: Wrongfully dismissed part-time employees do not automatically receive shorter reasonable notice periods than wrongfully dismissed full-time employees. However, part-time employment is a factor that can be taken into consideration when assessing an employee’s ability to find similar reemployment.

Facts: The plaintiff, Ms. Stuart, had a 24 year length of service with her employer Navigata Communications Ltd (“Navigata”). Over the last 5 years of her employment, Ms. Stuart worked only part-time (three days per week) while she was caring for her two young children. Ms Stuart was wrongfully dismissed by Navigata in 2006 while she was still a part-time employee.

After the dismissal, Ms. Stuart confined her job search to part-time positions so that she could continue taking care of her children, one of whom was ill. Part-time employment was difficult to find in her industry, so Ms. Stuart was unable to mitigate.

Decision: At trial, Navigata argued that Ms. Stuart’s notice period should be reduced because she was a part-time employee. The BC Supreme Court disagreed with Navigata. Instead, Madam Justice Martinson stated that “[a] permanent part-time employee is entitled to the same notice as a full-time employee.” Regardless of the length of the notice period, the court noted that wrongful dismissal damages are already reduced for part-time employees compared with their full-time counterparts. This is because a part-time employee’s wrongful dismissal damages throughout the notice period will be calculated based on part-time earnings. The notice period for a part-time employee may be the same number of months as for a comparable full-time employee, but the compensation each month will be lower for the part-time employee. In this way, wrongful dismissal damages already account for part-time employment.

Ms. Stuart argued that her part-time employment was a factor that should increase, not decrease, her notice period. She argued that it was difficult to find part-time employment in her specific industry, so the notice period should be increased to reflect the lack of availability of similar employment. The court accepted Ms. Stuart’s argument, and held that “[a] court may take into account the difficulty that a part-time employee, such as Ms. Stuart, will face in finding a similar part-time position.” The difficulty in finding similar reemployment was one factor the court relied upon in assessing an 18 month notice period.

Analysis: The reasons for decision do not clearly set out why Navigata argued that a part-time employee should receive less reasonable notice than a full-time employee. However, the court clearly dispels the notion that part-time employees should automatically receive reduced notice periods. Instead, the court applies a contextual analysis to understand how an employee’s part-time status can be expected to affect her reemployment prospects. This approach fits more comfortably within the usual Bardal analysis than an approach where part-time employees automatically receive reduced notice periods.

In Ms. Stuart’s case, she was able to use her part-time status to her advantage because part-time positions were less readily available than full-time positions in her industry. Her notice period was presumably lengthened on this basis, although it is not stated by how much. On the other hand, in industries where part-time positions are more readily available than full-time positions, this factor could theoretically justify a reduction in a part-time employee’s notice period.

Where there is a wrongfully dismissed part-time employee, both employees and employers should be prepared to demonstrate and explain how and why the part-time factor affects the length of notice, if in fact it affects length of notice at all.

Author: Brendan Harvey is an employment lawyer in Vancouver, BC practicing on the North Shore at Yeager Employment Law.