Employment contracts contain mutual notice requirements on the
termination or resignation of employment. The terms of notice
and severance are a key component of the hiring negotiations, i.e.
one month per year of service or a variation on that theme.
What is seldom addressed, even by lawyers, is the notice that is
required from the departing employee to the corporate or
institutional employer prior to resignation.
Notice required from the departing employee is for the benefit
of the employer and, as such, can be waived by the employer.
For example, if an employee is required to provide six months'
notice of her departure the employer can waive that contractual
requirement and tell the employee to leave immediately. Most
employers feel it is not in the corporate interest to keep a
"fired" or a "resigned" employee on the
premises. It is assumed to be bad for morale and may
jeopardize corporate security.
What has not been understood is that an employee who wishes to
quit and wishes to resign his position as an employee must live up
to the terms of his employment agreement and literally work for his
employer for the full term of the notice that is required prior to
In the case of Blackberry Limited and Sebastien
Marineau-Mes, the Ontario Superior Court of Justice ruled
specifically on the obligation of the employee when contractually
bound to provide six months' notice in advance of
Blackberry brought an application for a declaration that the
employment contract is binding as between the employer and the
employee, and accordingly the employee was bound to provide six
months' written notice of his resignation and further he was
required to remain and continue with his duties to the end of that
six month term. It was the Marineau-Mes' intention to
leave immediately. He planned to join Blackberry's
The employee takes the position that Blackberry cannot enforce
the six months' working notice and that the employee can
commence work any time after he has notified his employer of his
resignation. Blackberry argues that Marineau-Mes cannot
commence employment with another employer prior to the expiration
of the notice period. The employee says that the six month
notice period in advance of resignation is equivalent to a
non-compete covenant and is void as against public policy. In
the alternative he argues that he is free to leave during the
notice period and that Blackberry's remedy, if any, is an
action for damages.
The court noted that such a clause providing the employer with
notice prior to resignation is a common element of commercial
arrangements. By providing such notice the company is
protecting itself from the commercial disruption potentially caused
by an early departure. Blackberry made it known to
Merineau-Mes that his services were necessary over the notice
period for an orderly transition out of the company.
The court dismisses the employee's arguments, enforces the
terms of notice in the contract and forces the employee to continue
to serve the interests of his employer during the six months prior
to his date of resignation. An employer can waive a notice
provision that an employee is committed to provide by
contract. Yet if an employer insists on the employee's
services during the notice period the employee cannot refuse.
This case provides a wake-up call to executive employees who
continue to believe that the notice they are required to provide
does not bind them to provide ongoing services as well. In
this context, what is "good for the goose" is not
"good for the gander". Although the employer may
waive notice provided by the employee, the employee cannot deny the
employer its right to demand full service from the employee during
the notice period prior to resignation.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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