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You’ve wined them, you’ve dined them…and they’ve stood you up: What employers can do when jobseekers fail to commit

hiring

Although the interview process is generally quite stressful for employees, it’s no walk in the park for employers either. A lot of time, energy and resources go into courting a candidate. So, it’s fair to say that when a winner finally is selected and they’ve signed their shiny new employment contract, it hurts when they’re a no-show on their first day.

As Jennifer Heath discussed in her blog, in cases where an employer is caught off-guard by an existing employee’s decision to “ghost” their employer and abruptly stop coming into work, a possible solution is to offer the employee new consideration in exchange of the promise to stick around. But what is an employer to do in cases where they have not yet had the chance to build that relationship with the employee? What can be done when asking for a second chance just isn’t an option?

“Ghosting” in legalese

Recently, I came across a survey conducted by Robert Half and Associates that polled individuals on the reasons they would fail to follow through and work for an employer after having accepted a job offer from them. Although the reasons may be compelling to the particular individual in the circumstances, failing to show up for a job after having accepted an offer carries with it some legal consequences.

While the term “wrongful dismissal” is fairly well known and well understood, the term “wrongful resignation” is not that common. Wrongful resignation is like a wrongful dismissal except that it is the employee who has failed to provide the employer with reasonable notice of their intention to resign from their position. A wrongful resignation can take place even if the employee resigns before starting their job. The purpose and intent of a resignation notice period is to allow the employer time to find a replacement employee.

Although the Employment Standards Act, 2000, only formally requires employees who are part of a mass termination and choose to resign to give at most 2 weeks notice, under the common law, employees are required to provide reasonable notice. When an employee fails to provide such reasonable notice, the employer suffers damages in the form of costs, additional wages, and business losses that they would not otherwise have suffered had the employee provided them with the sufficient reasonable notice.

What is “reasonable” notice?

When determining whether or not there has been a wrongful resignation, courts consider what the period of reasonable notice should have been in the situation, based on a number of factors, outlined below.

  • Are you the only one for us?: When determining the appropriate length of a notice period, courts analyse the facts and circumstances of the case in order to determine how long it should reasonably take an employer to find a replacement.
  • Long v short-term relationship: Courts will also look at the length of the employee’s service. If the former has worked for the employer for over a decade and knows the “ins and outs” of the business, they will generally be much more difficult to replace than someone whose tenure is only a few months. A longer employment relationship will support the finding of a longer reasonable notice period. Recently in Gagnon & Associates Inc. et. Al. v Jesso et. Al., the judge determined that an employee with a ten-year tenure owed his employer a reasonable notice period of two months. The employee’s failure to provide said notice resulted in a $35k award for the employer, in order to compensate for the company’s loss of clients and business that were a direct result of the employee’s sudden departure.
  • What are you?: When determining the appropriate length of the notice, the position of the employee is an important factor to consider. Employers will generally have little difficulty replacing, for example, the bus boy, as opposed to the restaurant manager. If an employee held a senior-level position, this warrants the finding of a substantial reasonable notice period, since such high level and skilled employees are more difficult to find.

How to assess your damages

When determining the extent of the damages you may have suffered as a result of your employee’s “ghosting”, it is important to note that you cannot be compensated for expenses you would have incurred even if the employee had provided adequate notice. For example, whether or not an employee provides you with notice before resigning, costs of advertising the now-vacant or soon-to-be-vacant position will necessarily be incurred.

With that said, costs and business losses that are a direct result of your new hire’s failure to provide any notice are considered damages for which you may seek compensation. For example, as a result of the ghosting, you may be required to pay other employees overtime so that they may cover the shifts and duties of an employee who has wrongfully resigned. It is however important to note that these amounts are offset by what you would have been required to continue to pay the employee during that period of reasonable notice.

Best practices

What can employers do to prevent first-day ghosting?

Keep your options open: Don’t do anything definitive until you’re certain of your new hire’s commitment. This means holding off on the runner up’s rejection letter until after your chosen candidate shows up for their first day.

Ask for forgiveness: In the event you have already told your other potential candidate(s) it wasn’t going to work out, reach out and explain that the position has reopened. Maybe that bridge hasn’t been burned, and they are willing to set aside bruised egos or hurt feelings and accept your offer. This option is worthwhile, as it can spare you unnecessary expenses you would incur if you were to start the hiring process from scratch.

Sign a prenup: While there is at this time minimal statutory obligation in some cases in Ontario to provide notice of resignation, many employment agreements contain a clause regarding the resignation notice period. Including said provision in the employment agreement will require the employee to provide you with a certain amount of notice in the event they wish to resign, even before they were scheduled to start. Where a written contract is in place, an employee who quits before they start or who provides less notice than what is required by contract, would be in breach of such provision in the contract.

Sue the employee – but with caution: As indicated above, there could be breach of contract damages that an employer incurs and that they could pursue through the court system. But it’s important to keep a costs vs. benefits analysis in mind. For example, in the case of lower level employees with a shorter resignation notice period, those damages would be minimal and potentially not worth the cost and effort. Employers also want to be judicious with their actions in this regard and consider the message that suing such individuals sends to potential candidates and existing employees.

“It’s not you, it’s me”: Re-evaluate your onboarding process

Although it is difficult to excuse ghosting, it may be valuable to reflect on your hiring process and identify potential issues[1].

  • “…What happened with your ex?”: During the interview process, inquire about your candidate’s past. Be sure to identify any gaps you may notice in their employment history and ask for an explanation. This may help you identify red flags and find out if ghosting is something they’ve done with previous employers.
  • Do a thorough reference check: Make sure to contact the candidate’s listed references and find out if their past colleagues’ and superiors’ opinions sync up with your impression of them so far.
  • What do they have that I don’t?!: Examine your offer and compare it with one that you believe may have lured your supposed-to-be-new-employee away. Is the compensation offered adequate? Are other employers offering perks you aren’t?
  • Length of process: It is also important to consider whether the hiring process was unnecessarily dragged out. Your candidate might have been eager to start work, and needless delays may have irritated them.

By Patrizia Piccolo and Sabrina Morcos


[1] Tip referenced from Matthew Lester, IQ Partners Inc.’s article: 5 Reasons Why You Are Getting Ghosted by Candidates

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Piccolo Heath LLP

Prominent Canadian lawyers Patrizia Piccolo and Jennifer Heath have come together as Piccolo Heath LLP, Canada’s newest employment law firm. With more than 30 years combined expertise, the firm was founded with the purpose of delivering outstanding legal counsel and dynamic, client-focused service. Piccolo Heath LLP is focused on guiding clients through the legal landscape to determine the best solutions to their unique issues. The firm is well-versed in current employment-related case law and statutes, but is also highly sensitive to the practical impact of the law on both employers and employees. Read more.
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