Termination and Severance Pay in New Brunswick

Termination in New Brunswick works differently than in many other provinces. The province's Employment Standards Act does not create a separate severance pay entitlement. Instead, it sets minimum notice of termination, or pay instead of notice, based on how long an employee has worked for the same employer.

This page explains New Brunswick's notice of termination schedule, when pay in lieu of notice applies, the group termination rules for larger layoffs, and how common law reasonable notice can add to the statutory minimum in a wrongful dismissal claim. It is general information, not legal advice.

New Brunswick's Notice of Termination Schedule

Section 30 of the Employment Standards Act (SNB 1982, c E-7.2) sets the minimum notice an employer must give before ending an employee's job, based on the employee's continuous period of employment with that employer. The schedule is a simple two-step ladder rather than the sliding, add-a-week-per-year scale used in some other provinces.

• Less than 6 months of continuous employment: no statutory notice is required.
• 6 months up to less than 5 years: at least 2 weeks written notice.
• 5 years or more: at least 4 weeks written notice.

These figures are floors, not targets. An employment contract, collective agreement, or company policy can promise more notice than the Act requires, but it cannot lawfully promise less. Continuous employment is generally measured as unbroken service with the same employer up to the date notice is given, and short, approved absences typically do not reset the clock.

Pay in Lieu of Notice

Section 34 lets an employer skip working notice altogether and instead pay the employee wages equal to what they would have earned during the applicable 2 or 4 week notice period. This is commonly called pay in lieu of notice or termination pay.

The payment is meant to replicate the employee's normal earnings, including regular wages and vacation pay, for the length of the notice period the employee was entitled to. An employer who provides neither proper written notice nor the equivalent payment is liable to the employee for the shortfall under section 34(2).

Exceptions Where Statutory Notice May Not Apply

The Act carves out several situations where an employer can end employment without the usual notice or pay in lieu, including:

• Completion of a temporary assignment of 12 months or less.
• The natural expiry of a fixed term contract, unless the employee's work continued 3 or more months past that end date.
• Retirement under an established retirement plan.
• Certain construction industry work.
• Closure of a seasonal operation.
• An employee's refusal of reasonable alternative employment offered by the employer.
• Layoffs of 6 days or less, or layoffs caused by unforeseeable circumstances beyond the employer's control.

An employer dismissing someone for just cause must still put the reasons for the dismissal in writing. Employees who work for federally regulated employers, such as banks, airlines, or telecommunications companies, fall under the Canada Labour Code rather than New Brunswick's provincial Act.

Group or Mass Termination Notice

New Brunswick has a separate notice requirement for larger layoffs. Under section 32, if an employer plans to terminate or lay off more than 10 employees, representing at least 25 percent of the workforce, within a 4 week period, it must give at least 6 weeks notice to the Minister responsible for employment standards, to the affected employees, and to any bargaining agent. Where a collective agreement provides for a longer notice period, the longer period applies instead.

Does New Brunswick Have Severance Pay?

Unlike Ontario's Employment Standards Act, which layers a separate severance pay entitlement onto termination notice for larger employers, New Brunswick's Act does not. The province's own guidance is direct on this point: severance pay is not the same as pay in lieu of notice, and it is treated as a common law matter that sits outside the Employment Standards Act.

In practice, this means the statutory floor in New Brunswick is notice, or pay instead of notice, only. Any additional amount beyond that floor comes from either a specific promise in an employment contract or from a common law wrongful dismissal claim. For a province by province comparison, see severance pay in Canada.

Common Law Reasonable Notice

The Employment Standards Act sets a minimum, not a ceiling. A non-unionized employee who is dismissed without cause, and who does not have a valid, clearly drafted contract clause limiting notice to the statutory minimum, can generally pursue common law reasonable notice instead.

Courts assess common law notice using what are often called the Bardal factors: the employee's age, length of service, the character of the position, and the availability of similar employment given the employee's experience, training, and qualifications. Awards vary widely by individual circumstances and rarely exceed roughly 24 months, even for long-service senior employees. This is a fact-specific, case by case analysis rather than a fixed formula, and it runs on a separate legal track from the ESA notice discussed above. See reasonable notice for a fuller explanation of how these factors are weighed.

A properly drafted termination clause in an employment contract can lawfully limit an employee to the ESA minimum instead of common law notice, provided the clause meets the Act's requirements. Whether a specific clause is enforceable is a legal question that depends on its exact wording and is best assessed by an employment lawyer.

What Notice or Pay Should Look Like

For an employee with, for example, 3 years of continuous service, the statutory floor is 2 weeks of written notice or 2 weeks of pay in lieu. For an employee with 7 years of service, the floor rises to 4 weeks. These figures do not include any common law entitlement that may separately apply, and they assume none of the exceptions above apply to the situation.

Employees who believe they were not given the notice, or pay in lieu, that New Brunswick law requires can contact the province's Employment Standards Branch, which administers and enforces the Act. Employees considering whether they have a common law claim beyond the statutory minimum generally need advice from an employment lawyer, since that analysis depends heavily on individual facts and any written contract in place.

For a broader look at notice and termination rules across the country, see Canada employment law and Canadian law by province.

Disclaimer

This article provides general information about termination and notice requirements under New Brunswick's Employment Standards Act. It is not legal advice and does not account for every individual circumstance, contractual term, or exception that may apply. Notice entitlements, exceptions, and common law claims depend on specific facts. Anyone facing a termination, or considering ending an employee's job, should review the Employment Standards Act directly, contact New Brunswick's Employment Standards Branch, or speak with a qualified employment lawyer.