Issues to Consider When Moving on to a New Employer

Written on behalf of Peter McSherry

There are several things to consider when leaving one job for another. First, if you were deliberately recruited by a new employer, there may be certain entitlements should that new role not work out. Second, it is important to ensure that the promises made by a new employer are accurate. Lastly, there are obligations to keep in mind when submitting a resignation to your former employer. We will look at each of these issues below.

Inducement When Recruited

There are many issues to consider when a new employer comes calling with an apparent offer of an attractive, secure and new position of more responsibility and more financial rewards and perhaps also, a better career path to yet even more substantial positions in the future.

A prospective employer that clearly takes the initiative of approaching and soliciting a person with existing secure employment will face the argument at a later date, particularly if termination comes relatively quickly, of the factor of “inducement” to cause a fairly dramatic increase in the common law notice period.

This may be even more significant where the employee has been working a good number of years with their current employer. It is not uncommon for such a case to see an award of 6 to 12 months notice for a short term employee.

The person terminated must prove this allegation, of course. For this reason, it is wise to keep all communications in whatever format available. All meetings and telephone calls should be summarized in a memo to file and emailed to yourself through a neutral email server, which creates an inviolate time stamp by a neutral third party. This is a good technique, parenthetically, for all such notes to file for whatever purpose, for later use.

Be sure not to use your employer’s computer even for such third party providers for any purpose.

The more prejudice the employee can show by such a career loss, the better the case will be. For example, if shares in a stock plan are about to vest, or an annual bonus is precipitously close, a promotion on the hear horizon, and any or all are foregone, then the claim will have an added punch.

Negligent Misrepresentation

The first day on the job may reveal stark and unexpected surprises. In one landmark case, an employee moved across the country to Ottawa, and upon arrival found out that the job for which he was hired, had been eliminated as had the entire software project he was hired to lead. The Supreme Court of Canada allowed a claim for “negligent misrepresentation” damages in this instance which included lost income and the costs of moving to and from Ottawa back to Western Canada. This case was allowed even though an employment contract dictated a modest severance sum, but more on this topic later.

Time to Resign

This issue has been discussed in a prior post. For those readers who have yet to commit this to memory, absent a contract that defines this time period, which is rare, the departing employee must allow sufficient notice to his employer to find a suitable replacement. This is not a fixed period and will vary from case to case. In situations of exceptional vulnerability for the employer, this time period can be as much as six months. You may be sued for any losses your present employer suffers due to your sudden departure. This claim has nothing to do with your salary but rather is based on foreseeable losses.

If the new company sees you as a hot prospect, it may engender you more time to provide notice at your former place of work. If not quite so fortunate, get advice before you act. You must strike a balance between the requirements of the new employer and providing sufficient notice to the former, to avoid any surprises in the transition.

Often presenting yourself to your current employer with an intent to resign and opening a discussion regarding notice will in a mutually agreed-upon departure timeline. Should the former employer terminate you immediately, there is a claim for the minimum statutory severance and termination pay, even if your new employment starts the next day.

What Might I Take When I Leave?

Simply put, nothing beyond your personal effects. In the old days, there was a debate about the Rolodex. Today the contact list is very likely the property of the employer. This presents the same old argument about prior contacts which accompanied the employee to the present job from which departure is taken. Likely these are good to go, but things can become complicated due to issues such as non-solicitation and non-compete clauses. It is best to seek legal advice prior to departure.

Get Advice and Know Your Rights

Leaving your current employer can be a very difficult prospect, with much to consider from a legal standpoint. Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.