For Employees

Notice When Resigning

Thinking of quitting?
Two weeks may not be enough notice to your Employer!

Many employees believe that they can quit with a mere two weeks’ notice to their employer. As it turns out, this two week notice thing is by no means the law with respect to resignation.

As an employee, you should know that, while such lawsuits are a rarity, your employer could sue you to recoup losses as a result of your departure if you fail to provide adequate notice of your resignation.  It is therefore important that you know what “adequate notice” means for you.

The requirement to provide an employer with sufficient notice of resignation applies to everyone, and particularly so to those who are considered “key employees”.

How do I know if I am considered to be a “key employee”?

Unfortunately, there is no clear cut answer, and it is often uncertain whether a particular employee is a key employee or not. The Ontario case of Laplante v. Hennessy-Craibe, 2011 ONSC 5601 recently defined a key employee as follows:

A key employee is one who generally is responsible for guiding the business affairs of the employer, is involved in the decision-making process or is someone having access to confidential information that if disclosed could impair competitive advantage that the employer enjoys.

In another case, Imperial Sheet Metal Ltd. v. Landry, [2007] N.B.J. No. 226, the New Brunswick Court of Appeal described a key employee as follows:

A “key” employee is: (1) an integral and indispensable component of the management team that is responsible for guiding the business affairs of the employer; (2) necessarily involved in the decision-making process; and (3), therefore, has broad access to confidential information that if disclosed would significantly impair the competitive advantages that the former employer enjoyed. 

How much notice must you give to your employer?

Where there is an employment contract dealing with the your notice requirements before resigning, the amount of notice required will generally be determined by that contract.

Otherwise, there are several factors that ought to be considered when determining what amount of notice is reasonable.  The most important factor seems to be how long would it take the employer to hire and train a suitable replacement. Other factors include the duties of the employee, the nature of the workplace, and the industry in question.

If you hold a crucial or difficult-to-fill position within an organization, it is reasonable to for your employer to expect, and receive, a reasonable amount of notice.  The recent Ontario Court of Appeal decision of GasTOPS Ltd. v. Forsyth is a great example of this point: in that case, four key employees had left their employer on just two weeks’ notice. The employer sued the employees, and the Court held that two weeks was not adequate notice. In that case, the Court ruled that the employees should have given their employer ten months’ of notice of their resignation as that is approximately how long it would have taken the employer to hire and train replacements for the resigning employees.

It should also be noted that the notice requirements discussed above do not apply in cases involving a constructive dismissal. A constructive dismissal takes place when the employer unilaterally changes a term of the employee’s so that the employee’s employment is effectively terminated. Notice requirements also do not apply to employees who are involuntarily told that they must resign.

Are you a key employee who is thinking of resigning? Are you concerned that your former employer may sue you for not providing enough notice?  To learn about your particular notice obligations, contact us today for a consultation.

This blog is produced by Waterstone Law Group LLP. This blog is intended for information purposes only and is not offered as legal advice for a specific claim. Subscription to or use of this site does not establish a solicitor – client relationship between the user and Waterstone Law Group LLP or any of the individual contributors. For advice relating to your employment law claim, please contact us to arrange for a consultation.

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