Some employees may have to provide reasonable notice beyond the traditional two weeks
A lot of people seem to have used the pandemic to re-evaluate their priorities and what they want from their life and their careers, leading to what many are calling the “Great Resignation.”
A recent study of social media posts found that the top reasons why people are quitting their jobs are burnout and mental health problems, poor managers, and discomfort with their employer’s vaccination or mask enforcement practices. These are all concerns of which employers should take note. But if employees do leave, do they have any obligations to the employers they are leaving behind?
A well-known and fundamental tenet of Canadian employment law is that employers owe employees reasonable notice of termination – or pay in lieu of notice – when there is no just cause. There is the minimum notice requirements in employment standards legislation, plus common law notice based on various factors just as age, length of service, character of employment, and the likelihood of finding similar employment.
Reasonable notice serves as protection for employees to help bridge the gap to find a new job. But an employee abruptly quitting can leave an employer with its own gap that can’t be filled with just two weeks’ notice.
In theory, employees have a legal obligation to provide their employer with reasonable notice of resignation based on similar factors, and an employer could pursue legal action for wrongful resignation. However, the reality is that such an action is unlikely to be successful, given the traditional uneven balance of power between employers and employees, which is the basis for much of Canadian employment law’s leaning in the favour of employees – and the fact that employers are generally better equipped to deal with an employee’s sudden departure than a worker is to deal with the sudden loss of their job.
However, sometimes an employer might have a basis to claim wrongful resignation if the employee who quit is particularly important or difficult to replace. Back in 2010, the Ontario Superior Court of Justice found just such circumstances.
Four employees resigned from their technical positions with two weeks’ notice and shortly thereafter two of them set up a competing business that lured 12 more employees from the company. The company sued for failure to give reasonable notice and misappropriation of confidential information. The court found that the employees breached their fiduciary duties and didn’t provide reasonable notice of resignation, saying that reasonable notice is meant to give the employer time to hire and train a replacement and the amount depends on the nature of the position and the type of industry.
The court awarded the company $11.4 million in damages, including 10 months’ notice of resignation from each employee.
More recently, the New Brunswick Small Claims Court upheld the termination clause in a veterinarian’s employment contract that required her to provide four months’ notice of resignation. The vet provided 30 days’ notice of resignation after accepting a job elsewhere and the clinic asked for an additional 30 days to allow it time to recruit and train her replacement. The vet refused and the clinic sued for breach of contract and its 120-day notice requirement.
The court found that the vet was in a good bargaining position at the time she signed the contract because the clinic desperately needed her services and she had the option of negotiating her contract at the time it was offered. It also found that the length of required resignation notice wasn’t unfair considering the time, effort, and resources needed for the clinic to replace such a specialized position.
What if a valued employee resigns and then rescinds it before leaving? A hygienist at an Ontario dental practice tendered her resignation in 2005 after 12 years of employment there, as she planned to move out of town. However, before her last day, her plans changed and she told her employer that she wanted to stay. The dental practice agreed and she signed a new employment agreement. She worked there for seven more years until 2012, when the practice terminated her employment. The trial court found that the worker revoked her resignation prior to her resignation date in 2005, the employer agreed, and therefore her service was continuous employment. The trial judge awarded 15 months’ notice, but the Ontario Court of Appeal disagreed. The appeal court found that the worker’s resignation in 2005 was “unequivocal” and caused a break in the employment relationship, even though she didn’t stop working. It awarded damages based on the severance entitlements of the agreement she signed in 2005 and based on her service since then.
It seems that employees technically owe reasonable notice of resignation but, unless they hold a key position that will significantly hamper the employer if they leave abruptly, it’s probably not worth it for the employer to pursue any legal action. But sometimes, there may be reason for an employer to take action after a quick departure leaves them stuck.
