2 weeks – too much or too little?
We all know the phrase “two weeks’ notice” when talking about someone quitting their job. It’s a widely recognized concept that when someone wants to leave their employment, they tell their employer about two weeks in advance of the date they want to leave.
But not every job or worker is in the same boat. Someone who is in an entry-level position performing basic tasks is not going to represent the same level of loss to a business as a high-level executive or technically knowledgeable person who has several people reporting to her. The latter would require a lot more time and effort for the employer to replace and their departure could have a bigger negative effect. So should they legally have more responsibility when providing notice of resignation?
In terms of employment standards legislation, employees are usually required to provide no more than two weeks’ notice of resignation – unlike employers, who must provide a minimum amount of termination notice according to the employee’s length of service. Unlike the notice of termination requirement, the notice of resignation requirement doesn’t increase with the employee’s service time. So regardless of how valuable an employee is or how much key information they are, an employer doesn't have much protection if that employee suddenly leaves.
However, as with dismissing employees, the legislation isn’t the only legal consideration. While employment standards legislation stipulates a minimum amount of notice employers must give employees, that’s usually not all the notice that legally has to be provided. There is common law notice as well – which takes into account the Bardal factors – the employee’s age, length of service, position, skills, and the likelihood of finding similar employment.
Common law notice is usually significantly more than employment standards minimums and employers are on the hook for it unless they have employment contracts that specifically limit notice to the legislative minimums – and even then the wording of such contracts has to be pretty much perfect to exclude common law notice.
When it comes to important employees leaving their employment, it is possible that they could have a certain level of common law notice requirement to give to their employers. In 2016, a British Columbia company won damages from an employee who departed abruptly after five years and formed a company that competed with it. A court found the employee should have provided one month’s notice: see Consbec Inc. v. Walker, 2016 BCCA 114 (B.C. C.A.).
Two years earlier, an Ontario court upheld a provision in an employment contract that required an executive vice-president to provide six months’ notice if he wanted to resign. The court found it was a reasonable provision as the employee’s position was vital to the company – he was responsible for 3,000 employees including 11 vice-presidents and 70 directors – and the industry he was in was specialized and competitive: see BlackBerry Ltd. v. Marineau-Mes, 2014 ONSC 1790 (Ont. S.C.J.).
However, it’s important to remember that a central tenet of Canadian employment law it that there is an assumption of a power imbalance in the employment relationship and if something goes wrong, the employer is usually better equipped to handle it than the employee. This can make it difficult in many cases for an employer to recover damages from an employee who left without proper notice. While the above cases show it’s possible, they are somewhat of a rarity.
Employees should have some responsibility when they are ending the employment relationship and try to make things as smooth as possible. Of course, it’s not always on good terms, so it’s easier said than done in those cases. And the legal headaches may not be worth it for employers in many cases.
Unless the employee’s departure with two weeks’ notice or less causes significant loss and hardship to the business, sometimes it may be a good idea to just let things lie and move on, for both sides.
