By Stuart Rudner
In recent times, I have seen employers complain about employees resigning without sufficient notice and, ironically, I have also seen employers complain about employees giving too much notice of resignation.
So what are an employer's rights when it comes to dealing with an employee who resigns?
To begin with, it should go without saying that every employee has the right to resign from her employment and, since we do not have slavery in Canada, employees cannot be forced to continue working for a specific employer.
Like an employer terminating the employment relationship, the employee also has a responsibility to provide notice of her intention. Unless there is a contractual term that specifies the amount of notice to be provided, then the common law requires that "reasonable notice" be offered by the employee when she intends to leave.
While that same term is used in the context of notice of dismissal, the time periods are far shorter. Although many people assume that two weeks’ notice is required, that is not the law. However, it is the norm in most cases.
That said, the nature of the position and duties in question will certainly be taken into account, and some high-level executives will be required to provide months of notice. Essentially, the question becomes how long it should reasonably take the employer to replace the individual in question?
Occasionally, our firm receives calls from clients that are upset because an individual left with insufficient or, occasionally, no notice. We are asked whether it has a legal remedy. Technically speaking, a failure to provide reasonable notice of resignation is a breach of contract. However, as we explain to our clients, the question to be addressed is whether they have actually suffered any damages they can prove in a court of law.
It is important to remember that the damages are not those that arise because the individual has resigned — as stated above, an employee can resign at any time. In order to have a viable claim, the employer would have to prove it suffered damages specifically due to the employee's failure to provide the appropriate amount of notice. In most cases, that will be unlikely.
That said, a recent case demonstrates that lawsuits against employees who fail to provide appropriate notice can be viable, in the right circumstances. In the case of Consbec Inc. v. Walker, the employee was a manager and was the only employee in the company's Western office. He resigned in writing and left immediately to go to another company.
As a result, the employer was forced to scramble and relocate one of its employees from Ontario to British Columbia on an urgent basis. Ultimately, the interim relocation of that employee became permanent. The company was able to prove that, strictly as a result of the insufficient notice, it incurred costs of slightly over $56,000. The matter went to trial and the employee was ordered to compensate the company for those costs.
This case is an unusual example in the sense that the employer was able to identify specific costs that were incurred due to the provision of insufficient notice. Other potential scenarios would include employees involved in sales activities who leave suddenly and cause the company to lose out on sales revenue due to the fact the company was not left with enough time to replace him and ensure the sales were finalized.
Interestingly, in recent years, some employees seem to have discovered they can give more than two weeks’ notice and expect to be paid — even if the company does not want them to continue working.
By law, if an employee provides notice of resignation and the employer decides, for whatever reason, it would be best not to have him continue coming into work, the employer will be obligated to pay him through the notice period.
In fact, it has been confirmed at law that if an employee provides an excessive period of notice, in the employer's view, it is not open to the employer to accept the resignation but reject the amount of notice. According to at least one court in Quebec, doing so would constitute a termination, ensuring all of the rights and obligations a regular termination would.
So how is an employer to protect itself? One way would be to revisit the wording of the contracts. Most employment contracts I see include resignation clauses that require "at least" a certain amount of notice. That wording leaves it open to the employee to decide to provide more notice.
Instead, I would recommend employers consider including wording that requires a specific amount of notice, with no ambiguity that would allow for more or less. Otherwise, creative employees may attempt to abuse the situation by offering ridiculously long notice periods, knowing the company will not want them around but may well have to pay them.
I have been an employment lawyer for well over a decade, and have now been an employer for a year and a half. As an employer, I now understand the fear that a good employee will choose to leave. However, I also understand that, legally, there is nothing that can be done to prevent this. If an employee chooses to resign, there is no remedy available to the employer as a result of any costs or inconvenience that arise. However, if the employee provides insufficient notice, there may be a legal avenue to pursue.
For employers, we continue to recommend that employment agreements be used for all employees. Those agreements should address, among other things, termination of the employment relationship by either party and should set out clear rights and obligations.
For employees, you should not assume you are only required to provide two weeks of notice, as some positions will require more. Furthermore, you should not leave without any notice. Not only is this unlawful, it will certainly impact your reputation within the industry.