A look at notices of resignation

Can an employer demand a certain amount of notice from a departing employee?

Brian Johnston

Question: Can an employer demand a certain amount of notice of resignation? If an employee in an important position doesn’t provide notice of resignation, does the employer have any recourse?

Answer: Yes, in addition to any statutory obligations on an employee, an employer can insist on reasonable notice of resignation from an employee.

Many employment standards legislation specify the amount of notice an employee must provide — typically it is no more than two weeks’ notice if the person has been employed for two years or more.

Absent a specific contractual provision, that which constitutes reasonable notice will be subject to the same type of review that a court undertakes in assessing whether an employer has provided reasonable notice to an employee in a non-just-cause situation. The amount of reasonable notice the employee must provide depends upon a number of factors, including the significance of the position occupied by the employee and the ease (or difficulty) the employer will encounter in replacing the employee.

For example, in the 2016 Consbec Inc. v. Walker, the British Columbia employer remained successful in obtaining damages as a result of the employee not providing reasonable notice to Consbec when he quit his job.

However the damages awarded at the trial were significantly reduced by the province’s Court of Appeal.

An employer is best served by seeking to have the amount of employee notice reflected in the employment agreement. For example in the 2014 BlackBerry v. Marineau-Mes, BlackBerry was successful in enforcing a provision in the employment agreement that the employee was obliged to provide six months’ notice.

The reasonableness of that contractual provision was assessed by the Ontario Superior Court of Justice in relation to the level of position the employee, Sebastien Marineau-Mes, held and the nature of the industry.

As the requirement of an employee to provide reasonable notice — as opposed to statutory notice — absent specific contractual language is seemingly not well-known, it is helpful for the employment contract to define what the parties contemplate as being reasonable notice.

Of course, the amount of notice will depend on the particular circumstances of the employment relationship (the employee’s duties, length of service, and how long it would take the employer to deal with the employee’s departure), and a court may ultimately have to be satisfied it is reasonable in the circumstances.

The failure of an employee to provide reasonable notice, or the notice specified in the contract as the case may be, provides the employer with recourse to sue for damages arising out of the breach — such as increased recruitment costs and lost business.

The employment contract can also define the employer’s remedies.

However, the requirement of the employee to provide notice under statute does not diminish the employee’s contractual obligation to provide reasonable notice.

For more information see:

Consbec Inc. v. Walker, 2016 CarswellBC 642 (B.C. C.A.).

• BlackBerry Ltd. v. Marineau-Mes, 2014 CarswellOnt 3522 (Ont. S.C.J.).

Brian Johnston is a partner at Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@stewartmckelvey.com.

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