While we often help employees who did not receive reasonable notice of termination from their employer, it is often forgotten that employees also owe a similar duty to provide notice to the employer before resigning. This common law duty was the subject of the recent case of Consbec Inc. v Walker. In this case, the BC Court of Appeal reaffirmed the existence of the duty owed by employees to the employer.
In this case a 5–year manager of a company decided to suddenly quit without giving notice to the employer. The employee was the only person in charge of running a significant division of the employer’s business, and the employer had trouble finding a replacement. The employer had to first temporarily assign another employee and later permanently reassign a second employee to fill the role, and pay for the costs of relocation for both of the employees.
At trial, the court found the employee liable for not giving reasonable notice of termination and the employer was awarded a significant award in lieu of notice to compensate for the paid relocation costs. The employee appealed. The appeal court confirmed that an employee will be liable for “wrongful quitting” if the employee does not give reasonable notice of leaving to the employer. The length of this notice will depend on the position of the employee and the length of service as well as other relevant factors, such as the required time necessary for the employer to secure a replacement. While the employee in this case held a management position, the court found that the employee did not have sophisticated fiduciary responsibilities to the employer. As such, a 1–month notice period would be appropriate.
Fortunately the Appeal Court eliminated the damages given to the employer by the trial court, therefore avoiding setting a dangerous precedent that could expose employees to a large degree of liability. While employees may still be found liable for the breach of the common law duty to provide reasonable notice, the court in this case excluded the cost of permanently relocating another employee from the damage calculation, as the employer would have had to pay those costs regardless of the employee’s behaviour. The court also took into account the amount that the employer saved by not having to pay the employee who left his regular salary. These savings by themselves were greater than the costs the company incurred in temporarily relocating another employee and, as such, the employee who left was not found to be liable for any damages. In our opinion the case strikes an appropriate balance between employee protections and duties to inform the employer of the intention to terminate one’s employment.
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