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Do employees need to give more notice than the Pope?

Employees are required to provide 'reasonable notice,' but bringing a legal action against worker who provides little or no notice not always feasible

By Stuart Rudner

Recently, Pope Benedict XVI made headlines around the world when it was announced he was doing something no pontiff had done in hundreds of years: Resign.

What surprised many people more than the fact he had chosen to resign rather than continue in the position until death was the fact he provided only slightly more than two weeks' notice — unless he had actually notified his “employer” earlier but the resignation had been kept quiet. So if the worldwide head of the Catholic church only has to provide a couple of weeks of notice, why do so many employers think that their mid-level employees should provide months?

One question I am often asked by clients is how much notice their employees are required to provide when they are leaving, and what the employer can do if they fail to provide it. The answer to the first question, like many legal questions, is: It depends. The answer to the second is that, in many cases, there is nothing the employer can do unless it can show it suffered legitimate and provable losses or damages as a result of the employee’s failure to provide appropriate notice (and not simply arising out of the employee’s departure).

With respect to the obligation on the part of an employee to provide notice of his resignation, the law is actually the same as it is in the case of an employer dismissing an employee without cause. Specifically, in the absence of a contractual provision that provides otherwise, the employee is required to provide “reasonable notice.”

When a court attempt to determine reasonable notice in the event of dismissal, many factors are considered, including the employee’s length of service, age and position. In the context of a resignation, the only real factor of significance is the employee’s position and how long it will reasonably take the employer to replace this individual.

Sometimes, employees leave with little or no notice at all. In some cases they attempt to avoid providing notice by advising the employer they are leaving in two weeks but intend to take those two weeks as vacation time. However, they are not automatically entitled to do so as the power to decide when employees take vacation resides with the employer.

If the employee does provide short or no notice, the question t I am often asked is whether the employer has any recourse. While there is an obligation to provide reasonable notice, the reality is that, in many cases, the employer will not have a realistic chance of success if it were to commence legal action. In order to succeed in a legal action, the party pursuing the action must show not only that the resigning employee breached some sort of obligation, but that it suffered some sort of loss or damage as a result.

In this context, the employer would have to show there was a loss that arose directly as a result of the employee’s failure to provide adequate notice. This is quite different than costs that arose because the employee chose to leave, such as the cost of replacing the individual. Those are not compensable, as they arise out of the employee’s legitimate right to terminate the employment relationship.

The employer will have a possibility of pursuing a legal claim if the employee’s failure to provide reasonable notice has led to some financial cost. For example, if the employer lost an account, or incurred expenses in order to cover the absence of the employee during the appropriate notice period, those losses may well be compensable. Otherwise, and in the majority of circumstances, the cost of replacing an employee is simply a cost of doing business, frustrating as it may be.

One other aspect of this discussion is contractual termination provisions. Employers should bear in mind that if they are only agreeing to provide the absolute minimum amount of notice in the event of dismissal, they should not, except in unusual circumstances, expect far more notice if the employee resigns.

Stuart Rudner is a leading HR Lawyer and a partner in the Labour & Employment Law Group of Miller Thomson LLP, a national law firm. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at 416.595.8672 or srudner@millerthomson.com. You can also follow him on Twitter @CanadianHRLaw and join his Canadian HR Law Group on LinkedIn.

Stuart Rudner

Stuart Rudner, Employment Lawyer and MediatorStuart Rudner is the founder of Rudner Law (RudnerLaw.ca), a firm specializing in Employment Law and Mediation. He can be reached at stuart@rudnerlaw.ca, (416) 864-8500 or (905) 209-6999, and you can follow on Twitter @RudnerLaw.
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