An oft-overlooked issue is the amount of notice that employees must give their employer when they leave. According to Sure-Grip Fasteners Ltd. v. Allgrade Bolt & Chain Inc. (1993), 45 C.C.E.L. 276 (Ontario General Division), “an employee is obligated by law to give reasonable notice of termination to his or her employer. The main purpose of the notice of resignation is to allow the employer a reasonable time to find a replacement.”
While there is a common perception that employees must provide two weeks of notice, there is no such absolute rule. Two weeks would be appropriate in many circumstances. However, some employees, particularly those who are senior or more difficult to replace, will be required to provide more notice before they walk out the door.
In many cases, an employee will provide notice of resignation, and the employer will decide, for one reason or another, they do not want the employee to continue attending at work during the notice period. Typically, the employer will simply advise the employee that they do not need to continue to come into work. However, the employer is obligated to continue paying the employee through the notice period.
Occasionally, circumstances arise where an employee, either intentionally or otherwise, purports to provide an excessive amount of notice of resignation. For example, there would generally be no reason for a cashier in a convenience store to provide six months of notice. However, what is an employer to do if their employee does so?
In Oxman v. Dustbane Enterprises Ltd., Mr. Oxman, provided 6 months’ notice of his resignation. Dustbane purported to waive the 6 months’ notice and terminate the relationship 29 days later. Although the trial Judge was of the view that the notice provision was for the benefit of Dustbane and that Dustbane was entitled to waive that notice and still accept the resignation, the Court of Appeal ruled that “if the offer of resignation is not accepted as offered, which in this case would include a 6 month notice period, its acceptance is not binding on the employee and does not terminate the employment .” Since the Court found that the six months offered was reasonable, it ordered the employer to pay the balance of that amount.
Many employers proceed as Dustbane Enterprises did in that case when they are confronted with what they believe to be an excessive amount of notice of resignation: they simply reject the amount of notice provided and substitute a notice period that they consider to be reasonable. There are not many cases in which our courts have considered such circumstances. However, the Oxman case suggests that it is not simply open to the employer to accept the resignation, but substitute a different notice period. According to this line of reasoning, the employment relationship would not be terminated in such circumstances, and the employer would have to dismiss the employee (with notice or pay in lieu) in order to end the relationship.
Stuart Rudner
Miller Thomson LLP
Rudner Law, Employment / HR Law & Mediation
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