“Wrongful resignation”

Question: Although employees are not required by B.C. law to give the employer notice, is it acceptable to stipulate in a signed employment contract they must give one week’s notice? If we can ask the employee to give one week’s notice, can we also indicate that if it is not provided the difference between the one week and whatever notice is given will be recorded as time off without pay and the final cheque will be adjusted accordingly?

Answer: Just as an employer must provide reasonable notice of termination of employment to an employee, an employee must also provide reasonable notice to his employer. Although B.C. has no legislated notice period which an employee must provide, it is perfectly acceptable to specify such a period in an employment contract.

It’s a good idea to have all written employment contracts address the issue of how much notice an employee is required to give. The employment standards legislation of some provinces do provide for a statutory minimum period of notice of resignation.

In the absence of a written contract, the employee is still obligated to provide reasonable notice of an intention to quit. The amount of notice is fact-specific and will depend on the length of service, responsibilities and how long it will take for the employer to find a replacement. Notice from the employee can vary from two weeks to three months.

You will not be able to adjust the employee’s final cheque for any notice he has failed to provide since the effect of such an action would be to not pay the employee for time already worked. Nor would you be able to force the employee to work out the proper period of notice of resignation. Your only remedy would be to sue the employee for breach of the employment contract.

This action is basically the opposite of wrongful dismissal (“wrongful resignation”) whereby damages are sought for the employee’s failure to give reasonable notice. The problem for an employer in such an action is to prove it suffered damages due to the employee’s failure to provide proper notice. While employers suffer stress and inconvenience when an employee resigns without providing proper notice, it does not typically suffer quantifiable damages.

In some cases an employer may be able to point to an actual loss (for example, a lost account or client) that was directly attributable to an employee’s abrupt resignation. But in the vast majority of cases, litigation would simply not be worth pursuing.

Peter Israel is counsel to Goodman and Carr LLP in Toronto and is head of the firm’s Human Resource Management Group. Peter can be reached at pisrael@goodmancarr.com or (416) 595-2323.

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