How much notice must an employee give? (Guest Commentary)

B.C. case highlights issues for both parties
By Brandon Hillis
|Canadian HR Reporter|Last Updated: 05/15/2015

How much notice must an employee provide when resigning? After a recent British Columbia Supreme Court decision, this is a question that has received increased focus in recent months, for employees and employers alike. 


In the 2014 Consbec v. Walker, Peter Walker resigned from Consbec, his employer of five years, without providing any advance notice. Prior to resigning, Walker worked as Consbec’s western division manager and was the only employee in its B.C. office. 


At trial, Consbec advanced a variety of claims against Walker, including a claim for damages arising out of his failure to provide reasonable notice of resignation. As a result of Walker’s departure, Consbec was required to scramble to replace Walker and it incurred expenses of about $56,000 in order to do so. 


The court accepted that these costs were incurred as a result of Walker’s failure to provide “reasonable” notice and held Walker liable for those expenses. 


This case serves as an important reminder to employers that notice of resignation is a two-way street. If workers fail to provide sufficient notice of departure, they may be exposed to a claim for damages as a result.


So, what notice does a departing employee need to provide to avoid a similar situation? 


Unfortunately, there is no simple answer. In the absence of a written contract of employment setting out an employee’s notice obligations, there is no set formula or magic number that can be relied upon to calculate the amoutn of notice an employee must give. 


While many employees (and likely many employers) think all a departing employee needs to do is provide two weeks’ notice, this is not a hard and fast rule and may, in many circumstances, prove to be insufficient. The length of notice considered reasonable is variable and highly dependent on a number of factors.


The main purpose of providing notice of resignation is to allow an employer a reasonable period of time to adapt to the employee’s departure. Accordingly, in determining what would be reasonable, consideration will be given to such factors as the employee’s responsibilities, length of service, salary and the time it would reasonably take the employer to replace the employee or implement steps to adapt to the loss of the employee.


For example, the longstanding CEO of a large, publicly traded company in a specialized industry will be required to provide more in the way of notice than a short-term, entry-level employee who is occupying a position for which replacements can be easily found.


It is also important to note that the court’s decision in Consbec does not mean employees must provide onerous amounts of advance notice to their employers before departing. The courts have been clear employees are entitled to leave employment and an employee’s obligation to provide notice of resignation will not typically be as onerous as an employer’s common law obligation to provide notice or pay in lieu thereof when terminating an employee. 


So, the fact that an employee may be entitled to 12 months’ notice of termination from his employer does not mean the employer would be entitled to receive 12 months’ notice from that same employee; indeed, in most situations, the amount of notice the employee would be required to provide would be much less.


In the absence of a written employment agreement that details the amount of notice an employee must provide, the most prudent course of action for any departing employee would be to approach her employer as soon as she knows she is leaving, set out what she thinks to be a reasonable amount of notice and indicate a willingness to at least hear her employer’s view on what it believes is reasonable. 


From the employer’s perspective, it should base any decision on what it believes to constitute reasonable notice of resignation on the factors set out above, particularly how long it will take to replace the employee, and at least hear what the employee has to say.


Both sides should attempt to be reasonable and fair. By using this approach, employees and employers may be able to resolve issues surrounding employee resignations in an amicable fashion and without recourse to litigation. 


Brandon Hillis is a lawyer in the labour and employment group at Borden Ladner Gervais in Vancouver. He can be reached at bhillis@blg.com or (604) 632-3401.

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