While there is no requirement in Ontario for employees to
provide notice of resignation to their employer, the parties can
contract for a reasonable notice of resignation period. The purpose
of any such notice is to enable the employer to find a replacement
for the resigning employee. The courts will determine what a
reasonable notice period is based on the length of time that it
should take for the employer to find a comparable substitute
employee. Should an employee contract to provide a certain notice
period for resignation and provide the employer with less notice
than agreed, the employer may sue for damages suffered provided it
can prove them.
Damages awarded by the court to an employer can include such
items as costs of advertising for the new employee, fees to a
placement agency, and cost of overtime worked by other employees.
In situations where an employee was indispensable to the operation
and as a result of the employee's leaving on short notice the
operation had to shut down, or become significantly less
productive, the employer may be able to sue the employee for all
damages incurred during the notice period. However, costs saved in
not having to pay the employee's salary during the period of
notice will be deducted from any damages awarded. The employer has
a duty to mitigate its damages by providing a replacement.
When an employee resigns without giving the full notice of
resignation agreed to in the employment contract, the employer can
sue for lack of notice or may waive it and accept the
employee's conduct and breach of contract. The employer and
employee can agree to extend a resignation notice period but it is
then likely that the extension period would be considered a fixed
term contract of employment.
If the employer terminates the employee during any resignation
notice period or any extension of the resignation notice period,
the employer will have to provide reasonable notice, or pay in lieu
thereof, in accordance with the contract or common law. If any
employee resigns but the employer asks the employee to leave
immediately, the employer will have to provide reasonable notice,
or pay in lieu thereof, up to the point that the employee had
decided to leave anyway.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).