While Ontario Employment Standards requires Employers to provide employees with “Reasonable Notice” when terminating the employment relationship “without just cause”, there is no such statutory requirement for Employees to provide Notice should they wish to do the same.
Conventional wisdom has – at least up until now – provided that 2 weeks of Resignation Notice is appropriate and necessary if one wished to leave an Employer on relatively good terms.
What few people know is that here is a Common Law (laws developed in the Courts) obligation for an Employee to provide his/her Employer with Reasonable Notice of their intent to resign. The Reasonable Notice is predicated upon the following:
- The degree of specialization and scarcity of the skill and/or knowledge held by the departing Employee relative to the labour market, and how vulnerable a position the Employer would be left in as a result of an Employee’s hasty departure.
- The length of time it would reasonably take for the Employer to find a suitable replacement
- The Employee’s contractual obligation provided though an Employment Agreement or a Company Policy.
Failing to provide such reasonable notice of resignation has been coined “Wrongful Resignation” and this type of claim is making its way into the Courts and winning. The damages awarded to Employers have typically been limited to actual costs incurred as a result of an Employee’s early departure – such as lost business, overtime costs, etc. However the savings realized by not having to pay the ex-employee’s salary and benefits is deducted from this total when calculating the award. It is interesting to note that where Employees provide reasonable resignation notice, the Employer may still turn around and ask them to leave immediately. In this case, the Employer is obligated to pay the now-terminated Employee the lesser of Statutory Notice of Termination without cause, and the amount of Resignation Notice provided by the departing Employee.
There are relatively few Employers pursuing claims for Wrongful Resignation, but in an ever tightening labour market we would expect this trend to increase as Star Employees are lured away by other Employers offering more attractive Employment situations. Those wanting to avoid becoming the target of such a claim are well advised to take the safe route and consider the Notice factors listed above in determining an appropriate length of resignation notice. At the very least, remember that it is a small world, and the boss whose foot you step on today might be connected to hand that you need to sign your paycheck or sales order next year.
- S. Cooper
