Recent court case shows employees may have duty to provide reasonable notice when they quit
By Jeffrey R. Smith
Canadian employers are required by law to give employees reasonable notice of termination. The amount of that notice — or pay in lieu of — depends on a number of factors, including the employee’s length of service, employment record, position and the current job market. Notice is supposed to give a terminated employee the chance to find other work before her pay runs out.
But what about when an employee quits?
It’s a widely held belief that when an employee quits, two weeks’ notice is sufficient. This has often held up, as courts and arbitrators tend to lean in favour of the employee, due to what is usually a power imbalance between the big employer and the small employee. Usually, the employer is believed to have the staffing and financial resources to deal with an employee leaving on short notice until a replacement is hired.
However, the employer may not always have the advantage in such circumstances. An employee could hold an important position the employer depends upon for the operation of the business. The skills and knowledge of that employee could be difficult to replace. If that employee provides short notice before resigning, it could put the employer in a jam if the business can’t run smoothly without that employee.
In this kind of a situation, shouldn’t some of the factors determining reasonable notice of termination also apply to notice of resignation? Should the employer be entitled to more than two weeks’ notice?
Recently, the Ontario Court of Appeal upheld a lower court’s decision that resulted in a huge award for an employer after four employees in key positions gave two weeks’ notice of resignation. Part of the award, which numbered in the millions, was due to the employees breaching their fiduciary duties and misusing confidential information, but the courts also found the employees owed their former employer 10 months’ notice of their resignation.
A finding in the range of 10 months’ notice is fairly common when courts are awarding notice of termination but practically unheard of when it comes to an employee’s duty to provide reasonable notice of resignation. Employers usually don’t bother pursuing notice of resignation because they may feel it’s unlikely they’ll be successful and would rather just absorb the difficulties that may follow an important employee’s resignation.
But could this be the start of a trend? Should employers be entitled to more notice if an employee who’s quitting is in a key position?
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at [email protected]. For more information, visit www.employmentlawtoday.com.