By Jeffrey R. Smith
One of the fundamental aspects of employment law in Canada is employers must provide reasonable notice when terminating an employee without cause.
And the bar is pretty high to prove just cause, so it’s likely for most employers that a dismissal is going to be without cause. And there are many factors that have to be considered when determining the amount of reasonable notice — most of which serve to increase it. Ultimately, it means when the decision is made to dismiss an employee, the employee has to be informed with enough notice to give her a chance to look for a new job — or, as is usually the case, compensated with the equivalent of her pay during that notice period. But what should be the case when the shoe is on the other foot and the employee is leaving?
It’s a common and accepted practice that when an employee quits her job, she provides two weeks’ notice. Often, this is fine for the employer because it wouldn’t really want an employee who doesn’t want to be there to continue working for longer. And employers often have resources that allow them to absorb the worker’s absence until a replacement is hired.
But sometimes it’s not that easy. If the employee has a key position with the company and has important responsibilities, it might not be so easy to deal with her departure in a short period of time. As a result, the employee may have a bigger duty to provide longer notice.
Late last year, a BlackBerry executive was unhappy that his recent promotion wasn’t working out as he had expected. Because the company was going through some financial difficulties, the scope of his role wasn’t going to be as extensive as he had initially been told at the time of the promotion.
The executive found a new opportunity with Apple and wanted to join his new employer in a couple of months. However, he had an employment agreement that stipulated if he resigned, he had to provide six months’ notice and be available during that time. He challenged this provision as unfair, but the Ontario Superior Court of Justice found that the importance of his position — he was in charge of 3,000 employees and was in a key position in BlackBerry’s leadership — meant it was reasonable for BlackBerry to need six months to handle the transition and have access to his knowledge during that time. The court also pointed out that the provision wasn’t really a non-compete agreement, since the executive was still employed during the notice period and was being paid his base salary. The six-month notice of resignation was upheld: see BlackBerry Ltd. v. Marineau-Mes, 2014 CarswellOnt 3522 (Ont. S.C.J.).
There have been other cases where employees in important positions with their companies have been held to a higher standard when it comes to providing notice of their resignation. So while two weeks’ notice is often fine for employees who are moving on to greener pastures, sometimes those in important positions have an obligation to make sure they don’t leave scorched earth behind them.