Did you know that an employee is required to provide
"reasonable" notice of resignation (unless you agree to a
different notice period in an employment contract)? If you fail to
do so, your former employer can sue you and a judge can order you
to pay the employer damages. A recent Ontario Superior Court case examines the question of what reasonable
notice of resignation is.
Mr. Jesso was a senior salesman at Gagnon & Associates Inc.
The employment relationship was not "one of harmony." Mr.
Jesso believed he was underpaid, while Gagnon felt they were paying
him too much. Mr. Jesso became so dissatisfied he began making
plans to work at HTS, a competitor of Gagnon's.
One Friday afternoon, Mr. Jesso and another employee provided
their letters of resignation, effective immediately. Mr. Jesso
offered to work another two weeks, provided that Gagnon paid
outstanding fees Mr. Jesso believed he was entitled to. Gagnon did
not accept Mr. Jesso's offer to work a further two weeks.
Gagnon sued Mr. Jesso for breach of his duty of good faith,
misusing confidential information, and failing to give adequate
notice of resignation. Mr. Jesso counterclaimed for the outstanding
fees he believed he was owed, a share of the business and for
constructive dismissal. Ultimately, Mr. Jesso was successful on his
claim for outstanding fees, and Gagnon was successful in arguing
Mr. Jesso failed to give sufficient notice of resignation.
What is sufficient notice of resignation?
In determining the amount of notice Mr. Jesso should have given,
the court considered the nature of his position and the time it
would reasonably take Gagnon to replace him. Although Mr. Jesso had
no managerial responsibilities, he was a senior employee with 10
years' service and was responsible for a significant portion of
Gagnon's sales. The court accepted that Mr. Jesso's
departure resulted in Gagnon's sales not increasing by a
predicted 20% margin. Another relevant factor was that Mr. Jeso
knew the other employee intended to resign the same day, which
would also negatively impact Gagnon.
The court found that Mr. Jesso should have given two months'
resignation and ordered him to pay Gagnon the loss of sales that
were properly attributed to Mr. Jesso that Gagnon suffered during
those two months.
Lessons to be learned
The amount of notice employees are required to provide depends
on multiple factors, including the nature of the position and their
length of service. If you are considering to leave your employment,
you should consult a lawyer to learn what your obligations to your
employer are both during and after your resignation. This is
especially the case if you are considering working for a
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.
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.
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).