Resignation of Employment
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Written on behalf of Peter McSherry
Advance Notice
The issue of a voluntary resignation presents legal issues which most employees would find surprising. Just as the company is obliged to give fair advance notice of termination, so must the employee give the same notice to the company of their intent to end the employment relationship. There is no fixed rule as to how much this notice period should be. Each situation must be examined in context. For example, a senior marketing person who has acquired unique expertise and product knowledge, with no skilled subordinates, may well be required to provide as much as three to six months notice. The test is based on how long it would take the employer to find a qualified replacement.
Damage Claim of Employer
Should the employee violate this obligation and leave suddenly, they may be sued for all reasonably foreseeable financial losses. That could be substantial in a situation where the company, for example, has just secured a new source of business for which this person’s particular skills are vital. This being said, lawsuits based on this claim are few. Such cases usually come from situations where the departing employee also takes other employees, or company trade secrets or attacks the customer base.
Contract
Where notice of resignation has been given and the employer clearly accepts the resignation, then the employee usually cannot change their mind. An agreement has been made which is binding in both parties.
Real Life Example
This issue was considered in a recent Ontario Superior Court decision.[1] In this case it was undisputed that the resignation was purely voluntary and that the employer accepted it.
The argument made by the plaintiff when she attempted to rescind the resignation was that the company had to show some prejudice suffered by it, such as, for example, hiring and training a replacement. That position was rejected by the trial judge, stating that a contract was a contract, pure and simple.
Where there is no direct acceptance by the employer of the resignation, the employee may be unable to change mind if the company has taken steps to its detriment.
However, the key aspect to this case was that the resignation was voluntary. If an employee was agitated over some personal or work issue and resigned “in the heat of the moment” and then changed their mind, it would be unfair to allow the company to insist on this position.[2]
Good legal advice would have saved the employee’s position in this case. The resignation had been prompted by the company’s decision to convert certain of its work processes in four months’ time. The employee resigned, which was accepted and then the company revised its plans on the changes. Had the resignation letter simply stated that the resignation was conditional on this change occurring, the legal position would likely have been secured. A simple thirty minute meeting could have made significant impact on this person’s employment.
Let Legal Advice Guide Your Steps
If you have questions about your resignation or other employment issues, 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
