Q. I have been employed by my current employer for 12 years. I have decided to accept a position with another employer and must now tender my resignation. Do I have an obligation to give my current employer any advance notice that I am voluntarily terminating my employment?
A. While the Ontario Employment Standards Act, 2000 (the “Act”) does set out specific, minimum periods of notice which an employer must provide to an employee prior to dismissing the employee without just cause, the Act does not impose a specific obligation upon a departing employee to provide his/her employer with advance notice of his/her resignation. According to the Common Law (a body of law developed by the Courts), however, an employee does have an implied legal obligation to provide his/her employer with “reasonable notice” of his/her planned resignation.
Pursuant to the Common Law, the amount of reasonable notice required to be given by a departing employee depends on the specific facts of his/her case, and generally speaking, an employee in a key, hard-to-replace position, will be required to provide his/her employer with more advance notice of resignation than that required of a departing employee in a less vital position.
In the same way that an employee may sue his/her employer for wrongful dismissal if the amount of advance notice of termination with which he/she is provided is unreasonable in the circumstances, an employer may sue a departing employee for wrongful resignation if the employees provides insufficient advance notice that he/she is voluntarily terminating his/her employment. Few, if any, wrongful resignation actions are litigated, however, in light of the fact that the employer's claim for damages will be restricted by the Court to only those damages or losses which the employer can prove were actually incurred as a result of the employee's failure to provide adequate notice. While the Court may award damages for such things as the cost of advertising the vacant position; fees to placement agencies; and the cost of overtime wages paid to other employees covering the departing employee's duties, the costs saved by the employer by not having to pay the resigning employee's salary during the notice period will be deducted from the damages. Often these “saved costs” exceed the actual losses sustained by the employer, and for this reason, few wrongful resignation lawsuits are sufficiently economically viable to litigate.
Employees should note recent case law which has held that if an employee resigns and provides advance notice of resignation to his employer, and if in response to such notice of resignation, the employer asks the employee to leave immediately, the employer is legally required to provide reasonable notice of termination (or pay in lieu thereof) to the now-dismissed employee. (The period of notice of termination, however, will not exceed the period of notice of resignation originally given to the employer).
Before announcing an intention to resign his/her employment, a prudent employee should carefully review the language of any employment contract to which he/she may be a party, as well as the wording of any applicable workplace policy regarding resignation. Either or both of these documents may explicitly set out a minimum period of notice of resignation which the employee is required to provide to his/her employer before voluntarily terminating his/her employment.
Note: The information contained in this article is issued to provide general information only. It is not intended to provide legal advice and should not be acted upon without consultation with professional advisors
