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Quitting a quitter

Can employers waive a notice of resignation and send the employee packing without further compensation?

By Jeffrey R. Smith

When someone resigns, it can create an awkward situation: the employee’s mind is likely turning to other things, such as a new job or future opportunities, while the employer is faced with losing a resource it likely needs to replace.

Often, it will take some time to find a replacement, which means the employer is likely faced with a worker shortage to make up in the short-term — the employee may be leaving, but the work will still be there. A transition period in which the outgoing employee continues to work for a while either training a replacement or helping with the transition can help, but if the departing employee isn’t in to it, it might not work.

I’ve discussed in the past how resigning employees have much less legal responsibility than employers when it comes to reasonable notice in terminating the employment relationship. This is a natural product of the accepted power imbalance between employer and employee.

An employer has more resources to find a replacement employee and is better able to weather a short-term labour shortage than a dismissed employee has to find a new job or weather a period of unemployment.

But if an employee gives a notice of resignation with an effective date — such as the standard two weeks’ notice — can the employer decide to terminate the employee immediately without further obligations? If an employee is fired, the employer has to provide reasonable notice or pay in lieu of. But an employee who quits likely has other arrangements in place and the employer may not want her in the workplace any longer if the employee doesn’t want to be there.

The Quebec Court of Appeal recently overturned a decision by the province’s labour standards commission that granted an employee who quit three weeks’ pay after the employer immediately terminated the employment of an employee who announced he was quitting (Québec (Commission des normes du travail) c. Asphalte Desjardins inc., 2013 CarswellQue 2371 (Que. C.A.).

The court found a notice of resignation was intended to benefit the employer and the employer had the right to refuse that benefit. No further compensation was required because it was the employee who chose to end the employment contract. The court noted different circumstances might not always give the employer the right to waive the notice of resignation period — such as a notice of retirement or an employee leaving to care for a sick relative.

Employees who give the accepted minimum of two weeks’ notice of resignation usually want out pretty quickly. But if an employee gives a longer notice, it probably means she’s not quite ready to go yet, whether if it’s because a new job won’t start for awhile or she wants to help with the transition. If that’s the case, should the employer still have the right to kick the employee to the curb immediately without any additional compensation?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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