In Alberta, whenever a worker is member of a trade union and the employment is governed by a collective agreement, the Trade Union is the worker’s exclusive bargaining agent and the breach of an employee’s rights must be handled through the Trade Union. Trade Unions may be liable to the worker for a breach of their duty of fair representation as the worker’s sole and exclusive agent.
If an employee is employed in a federal work (such as banking, interprovincial trucking, interprovincial utilities or communications), then the worker’s relationship with the employer is governed by the Canada Labour Act.
In other situations, the relationship between an employer and an employee is governed by the common law, subject to minimum standards as set out in the Employment Standards Code of Alberta. Both the common law and the Employment Standards Code provide that an employee may be terminated by an employer at a time without cause so long as proper notice is given or an equivalent amount is paid for the proper notice period to the employee by way of severance. If there is just cause, then the employee is not entitled to either notice or severance.
As to what is an appropriate notice or equivalent severance, the employee must elect whether to receive the minimum amount prescribed under the Employment Standards Code or claim a larger amount of severance or termination pay from the employer under the common law.
In most cases, it is recommended that the terminated employee seek the services of a lawyer or if cause is alleged by the employer, to make a determination as to whether or not the employee should accept the minimum notice and service prescribed in the Employment Standards Code or proceed to attempt to obtain a larger amount under the common law.
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