How Much Notice of Resignation is Sufficient?

By Pushor Mitchell LLP
Categories: Blog, Employment Law

Like employers, employees must also give reasonable notice of their intention to terminate the employment relationship. Whether the notice obligation is set out in an employment contract or not, the employee faces legal consequences for abandoning employment without giving notice.

In some provinces, employment legislation dictates the notice requirement for resigning employees. B.C.’s Employment Standards Act, on the other hand, contains no such requirement. The notice of termination obligations set out in Part 8 of the B.C. legislation apply only to employers, not employees.

Well-drafted employment contracts contain a clause defining the employee’s obligation to provide notice of resignation. Assuming the contract is legally binding, the employee must comply with its requirements (or face the consequences of breaching that obligation).

In the absence of a contractual clause, employees still have the common law obligation to provide reasonable notice of resignation. The employee’s notice obligation is intended to allow the employer a reasonable amount of time to arrange its affairs or find a substitute employee.

If the employee fails to provide reasonable working notice of resignation, the courts can award damages against the employee. This is an extremely rare occurrence in Canada but, when it occurs, can have a drastic impact on the individual. In cases where the employee possessed specialized skills or left the employer in a very vulnerable situation, the employer could obtain significant damages for wrongful resignation.

It is good practice for both employers and employees to agree, in an employment contract, on the appropriate notice of resignation. As with most other elements of the employment relationship, getting it in writing will likely avoid costly disputes later on. The difficult question can be, when establishing the notice obligation in a contract, how lengthy should the notice period be?

For some reason there has developed a widely-held notion that two weeks’ notice of resignation is sufficient in most instances. Where that came from is anybody’s guess because there is no accepted formula for notice. In entry-level or unskilled positions two weeks’ notice may be sufficient but in most other occupations the period should be lengthier.

The employment contract gives the parties, particularly the employer, the opportunity to dictate the terms they wish to govern the relationship. The moment of the formation of the employment relationship is the employer’s best opportunity to impose an appropriately lengthy notice obligation. This can also be achieved after the employment has commenced but employers are well-advised to obtain legal advice on the proper method.

Depending on the degree to which the position requires specialized skills, the employer could be facing a period of three to six months to find a replacement. So, why intentionally put yourself in a position where your organization will surely suffer a gap in coverage if an employee abruptly resigns? This is a good reason to fashion the notice clause so that it matches the likely difficulty you will have in locating a replacement.

Assuming it is a position for which there is not a ready pool of qualified candidates, you should be thinking of a notice period which is months in length rather than weeks. But be careful to keep it within a reasonable range because no court is going to enforce a contract provision which unreasonably ties an employee to a particular employer.

Recent caselaw indicates that as much as three months notice can be acceptable, depending on the circumstances. It isn’t too difficult to imagine exceptional circumstances where as much as six months notice would be required (but I’d be hard pressed to justify anything beyond that length).

The important thing is for the employer to reasonably assess its circumstances, as well as those of the labour market in which it is shopping, to estimate the time it will take to locate a replacement employee. The outcome of that assessment should dictate the notice period which goes into the employment contract.

This approach will go a long way towards ensuring that your organization is better able to withstand the effects of employee resignations. It will also give you a basis to pursue a key employee for damages if your business suffers from an abrupt departure.