Does an employer have to pay an employee who only does some training and quits before starting the regular job?
Question: An employee accepted a position, arrived for work, did some training, attended a meeting, left for lunch and sent an e-mail saying this job was not for her. Does our company have any recourse against this person? Since necessary documentation was not handed in, does the employee qualify for pay?
Answer: It is frustrating when a new employee resigns with little or no notice, as the employer usually feels that the resources that were invested in the recruitment, hiring and training process have been thrown away. Unfortunately, an employer usually has little in the way of meaningful recourse in this type of situation.
Sometimes an employment relationship turns out to be a bad fit, which is why prudent employers ensure that their employment agreements, collective agreements and policies contain appropriate probationary language that enables them to dismiss the employee quickly and inexpensively if she turns out to be unsuitable for the job. The termination of a new employment relationship can also be initiated by the employee, if the job does not measure up to her expectations.
While the employment standards statutes in some Canadian jurisdictions (Alberta, Nova Scotia, Newfoundland, Manitoba and Prince Edward Island) require employees to provide a specified amount of resignation notice, none of these statutes require employees with less than 30 days of service to provide their employer with any notice before quitting.
Apart from the statutory requirements, an employee also has a duty to provide the amount of resignation notice that is required by her employment contract. If no express resignation provision is included in the contract, the employee has an implied obligation at common law to provide the employer with reasonable notice of resignation. The length of the common law resignation notice period will usually be shorter than the amount of notice the employer would need to provide to the employee if it wished to dismiss the employee without cause, and is typically measured in weeks rather than months. Factors that influence the notice period include the employee’s level of responsibility, length of service, degree of specialization and skill, and the time it will take for the employer to recruit and hire a replacement.
Where an employee resigns without giving proper notice, the employer is not entitled to an order for specific performance, or an injunction to force the employee to continue to perform her duties. Rather, the employer’s avenue of recourse is to seek damages for a breach of the express or implied contractual requirement to provide notice of resignation. In a wrongful resignation case, the normal contractual method of measuring damages applies — the employer is entitled to be placed in the same financial position it would have been in if the employee had given the required resignation notice. The challenge for an employer in this type of situation is that it must prove it suffered damages arising foreseeably from the employee’s failure to give proper notice of resignation, not from the resignation itself. This is often difficult, and as a result wrongful resignation cases are usually limited to situations involving key employees who have departed at critical times, or to compete unfairly.
As far as pay is concerned, the general rule under employment standards legislation across Canada is that employees are entitled to be paid for training that is required and controlled by their employer. Such training is considered “work,” for which wages must be paid. Where a new employee reports for work at a time designated by the employer, the employee must be paid wages for the ensuing shift, even if most of the employee’s time has been spent in orientation, training and attending meetings. It is also worth noting that any costs or expenses an employer feels it has thrown away as a result of an employee’s abrupt departure cannot be deducted from the employee’s wages, as this would constitute an unauthorized deduction contrary to the applicable employment standards legislation.
