Giving your notice: Do the right thing

I've written extensively about the notice that employers must give to employees in respect of terminations without just cause.

What many people don't know or understand is that there is also a legal duty upon employees to give notice to employers if the employee intends to resign or walk away from a job. Employers are entitled to receive notice so they can find a replacement or take steps to deal with the loss.

LEGAL ACTION

You don't hear about this requirement because employers rarely sue their former employees for violating this duty. In most cases employers don't mind it if an employee walks away from a job without giving proper notice. The employees may be replaced or their responsibilities may be placed on the shoulders of other workers and usually no legal action is taken.

But if the employee has not given reasonable notice and the employer suffers a loss as a result of the failure to give such notice then the employer may sue and can recover a judgment for any losses suffered.

This result was driven home in a recent Supreme Court of Canada decision involving a RBC Dominion Securities branch manager who quit and arranged for the departure of numerous people who worked under his supervision. They all joined a competitor, Merrill Lynch, but did not provide notice that they intended to quit.

The SCC ruled that the departing employees ought to have given their employer at least 2.5 weeks of notice and ordered those employees to pay the sum of $40,000 for profits that were lost as a result of the failure to give reasonable notice. These employees were also ordered to pay $5,000 each for taking and using their employer's confidential information.

The amount of notice required to be given by an employee to an employer bears little relationship to the notice required to be given by an employer to an employee dismissed without just cause. Court awards for wrongful dismissal usually peak at 24 months for the most senior long-term employees.

There are very few cases to guide lawyers on how much notice an employee is required to provide but I suspect the maximum amount of notice an employer can expect in a typical case is about one month. That doesn't mean that an employee may not give more than one month's notice but it would be unusual for a court to require more than one month.

If the employer does not wish to keep the employee for the notice period and tells the employee to leave immediately, the employer will be deemed to have dismissed the employee and may be liable to pay the employee until the end of the notice period originally given by the employee. Of course, that assumes that the employee gave a reasonable amount of notice.

Things are never cut and dried in legal matters. As employment law expert Barry Kuretzky reminds me, the notice requirement may be increased in "unusual circumstances such as the case of a highly skilled employee who cannot be easily replaced without substantial cost to the employer." Further, as Kuretzky says, "It is also important to check your employment contract, if you have one, because the terms of resignation are often set out and agreed to and employees should adhere to them."

Reasonable notice

So before you decide to leave your job for greener pastures, remember that your employer has rights and you have an obligation to be reasonable. Do the right thing and give reasonable notice. If your employer tells you to leave immediately you haven't lost out and should be able to get paid until the end of the notice period. Remember, if you don't provide reasonable notice you can be sued.

Alan Shanoff was counsel to Sun Media for 16 years and is currently a freelance writer and teaches media law.

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