As the end of the pandemic – maybe – nears, the news cycle has been full of predictions of a great resignation wave. In times of uncertainty, people tend to stay in their jobs, but perhaps that time of uncertainty is ending. The experiences offered by the pandemic have also led many to shifts in mindset or priorities. Maybe that commute really does seem too long now or maybe the time really is right to start that novel! Whatever the reasons for resignations, they are coming. There is lots of advice out there for employees about how to quit. Today we will look at what employers need to think about when employees resign.
In Ontario, there is no statutory minimum amount of notice of resignation that employees are required to provide. Practically, this means that an employee could tell you they are resigning effective immediately or that they are resigning effective in five months. Absent a contract setting out notice or resignation, the exit is driven by the employee, so they get to decide when it happens.
Too little notice
Employees who give too little notice and leave employers in the lurch could be liable for the damages created by their swift exit. Reasonable notice of resignation may be required by the common law for employees who are crucial. If the employee’s exit actually creates serious turmoil, and causes the former employer an actual loss, they could be found liable for that loss. Having a contract comes in handy. High-level employees should have contracts with notice of resignation periods that account for any difficulties likely to be encountered in the transition. Reasonable notice of resignation is typically determined to be the amount of time an employer will need to find and train a suitable replacement.
Too much notice
Often employers don’t want employees who are on their way out to stay on the payroll. The typical thinking is that these employees won’t be motivated to work and they may be a liability in terms of potentially stealing employer confidential information or causing a morale dip among the employees being left behind. Employers can typically safely waive an employee’s notice of resignation period and ask them to stop working early. However, these employees will typically be entitled to be paid until the end of their specified notice period.
Employees have certain common law obligations that continue following the end of their employment, most significantly a continuing duty to protect employer confidential information. This means employees cannot steal employer confidential information or tell all their secrets to a competitor. Employees should be reminded of this obligation on their way out. Employers should also take care with their digital assets to ensure that the employee is not downloading a bunch of confidential information to take with them on their last day.
Some employees may also be bound by restrictive covenants, such as non-solicitation or non-competition agreements. While these are often not enforceable, these should be reviewed with the employee upon their exit so that expectations are clear.
Keep things positive
Many suggest that employee resignations will be fueled by employer demands to return to the office and the old, less flexible, way of working. Employers would be wise to consider if this is really necessary. If it’s going to cause good employees to walk, maybe it’s worth a re-think.
Many also suggest that employees might want to come back to their jobs, following a resignation, once their passion project doesn’t work out, they have recovered from pandemic burnout, etc. Both employers and employees should keep things positive. It’s a small world after all!
Original title of blog post: Employee resignations are coming! Considerations for employers