Notice requirements for those who quit (Toughest HR Question)

Employees also have rights, obligations when resigning from their posts
By Yaseen Hemeda and Joan Sum
|Canadian HR Reporter|Last Updated: 09/25/2012

Question: Are employees required to provide their employer with a certain amount of notice of resignation?

Answer: Before answering this question, it’s important to note an employee’s resignation from an organization should be voluntary and not forced on an employee. For example, an employee should not be given an ultimatum of either resigning or being terminated.

Employers should also be aware that if an employee resigns as a result of a loss of temper or not fully understanding the consequences of her actions, then the resignation may not, in fact, constitute a legitimate resignation.

Employment standards legislation in Alberta, Manitoba, Prince Edward Island, Nova Scotia, Newfoundland and Labrador and the Yukon requires employees to provide employers with notice of resignation. Employees in Newfoundland and Labrador can even be required to give up to six weeks’ notice and employees in the Yukon can be required to give up to four weeks’ notice. The Civil Code of Quebec does not prescribe a certain number of weeks’ notice, but it does require that an employee provide reasonable notice to an employer.

Employees in jurisdictions that do not have legislative provisions governing notice requirements for employees may have an implied legal obligation to provide their employer with reasonable notice under the common law, unless an employment contract stipulates otherwise.

Determining the amount of reasonable notice owed to an employer isn’t clearcut. But, there are several factors that can affect this determination, such as the approximate length of time it would take to hire and train replacements, the duties of the employee and the nature of the workplace and industry.

In addition, employees who hold crucial, difficult-to-fill positions will be required to provide their employer with more notice of resignation than those who hold less important positions. The length of notice required can range from two weeks to one year.

Just as employees are entitled to sue their former employer for wrongful dismissal when the amount of notice provided is insufficient, an employer also has the right to sue former employees for wrongful resignation because of insufficient notice.

There is, however, a misconception that employees can provide a minimum of two weeks’ notice — or no notice at all when resigning from employment. The reality is employees have both rights and obligations with respect to the employment relationship, including when they depart from an organization.

A recent decision of the Ontario Court of Appeal, GasTOPS Ltd. v. Forsyth, made this point very clear. In brief, four employees resigned from Ottawa-based GasTOPS to open a competing business and only provided two weeks’ notice.

But the employees should have provided 10 months’ notice of their resignations, as this would have provided the employer with enough time to hire and train new employees, according to the court.

“Failure of an employee to provide adequate notice will entitle the employer to an award of damages. Generally, reasonable notice is meant to provide the employer time to hire and train a replacement,” said the court. “In determining the time required to hire and train a new employee, one must look at the nature of the employee’s position and the area of work that the employer was competing in.”

As this case illustrates, employers have rights under the law protecting them from employees who don’t provide sufficient notice of their resignation. In the vast majority of cases, it is highly unlikely an employer would bother to sue a former employee. However, when key employees resign, the employer can sue for wrongful resignation.

An important lesson for employers in avoiding costly and time-consuming litigation is to ensure employment contracts are well-drafted and clearly stipulate both the rights and obligations employees have towards their employer. The employment contract should clearly outline the amount of notice employees must provide when tendering their resignations.

If there isn’t a written employment contract in place and an employee does resign without proper notice, then the employer should advise the employee in writing that the notice provided is insufficient.

Employers should keep in mind, however, that just as employees have a duty to mitigate after being terminated without cause, so do employers if an employee quits. The employer must make a diligent effort to find a replacement as soon as possible.

Yaseen Hemeda and Joan Sum are product writers for Consult Carswell. They can be reached at yaseen.hemeda@thomsonreuters.com or joan.sum@thomsonreuters.com. For more information, visit
www.consultcarswell.com.

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