By now we all know that an employer in Ontario can terminate any
employee at any time without just cause, so long as the termination
is not due to any discriminatory reasons, and so long as the
employee receives proper notice of termination. If an
employer is not comfortable with having an employee remain in the
workplace during their reasonable notice period, they have the
option to end the employment relationship immediately, by giving
the employee pay in lieu of actual notice. But what happens
when it is the employee who gives advanced notice of their own
This question was recently addressed by the Supreme Court of
Canada in Quebec (Commission des norms du travail) v.
Asphalte Desjardins Inc. (2104 SCC 51). The employee
was Daniel Guay, and he had been working in Quebec for Asphalte
Desjardins since 1994. He gave his employer notice on
February 15, 2008 that he would be leaving as of March 7, 2008 to
take a higher paying job with a competing company. Mr. Guay
considered that the three weeks of notice would be sufficient for
him to complete his outstanding work with Desjardins and properly
train his replacement. For its part, Desjardins attempted to
dissuade Mr. Guay from leaving, and when their attempt failed, it
decided to immediately terminate Mr. Guay on February 19, 2008.
The Civil Code legal system in Quebec is different from
the common law system in the rest of Canada, in that it requires
both employer and employee to give notice when either intends to
end the employment relationship. However the employment law
principles generally remain the same. In this case, the
Commission, on behalf of Mr. Guay, complained that the employer
failed to give proper notice when it terminated him. The
employer on the other hand, argued that when Mr. Guay gave notice
of his resignation, it was released the obligation to provide
notice of termination.
The Supreme Court sided with the Commission and the
employee. A contract for employment is not automatically
ended upon receipt of a notice of termination or resignation, and
the parties have to honour the terms of the employment relationship
until such time as the date specified in the notice given by the
employer or employee. Accordingly, the Supreme Court held
that an employer who receives a notice of resignation from an
employee cannot terminate the employment without giving notice of
termination or pay in lieu of notice.
Desjardins therefore wrongfully dismissed Mr. Guay and was
required to provide him with pay in lieu of notice of
termination. Since Mr. Guay's resignation was to take
effect three weeks after the date he was terminated, the employer
had to pay him an amount equivalent to three weeks' pay.
This decision is a clear illustration for how an employer in
similar circumstances is permitted to manage its workplace.
If an employee gives notice that they will resign effective three
weeks from today, an employer is entitled to end the employment
immediately, provided that they pay the employee an amount
equivalent to what they would have earned up until the date their
resignation would take effect.
The lawyers at CCPartners are experienced in dealing with
employee resignations and can help you ensure that your company
fulfills its legal obligations, and enforce any rights, any time an
employee is resigning.
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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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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