Generally, if an employer wishes to dismiss an employee and end the employment relationship, they are free to do so as long as they provide sufficient notice, or pay in lieu of notice. This is to provide the employee with enough time to find suitable, comparable employment. If the employer does not provide sufficient notice, the Courts will consider this to be a breach of the employment contract and the employee can sue the employer for failing to provide sufficient notice of the termination.
The employer’s duty to provide notice has a mirror image: the employee’s duty to provide reasonable notice of resignation. Employers generally stipulate the amount of notice required in the employment contract. The duty is meant to give the employer sufficient time to find a suitable replacement. Usually, this is two weeks’ notice, but much more notice may be necessary depending on the circumstances. Generally, in determining the length of notice owing, Courts will look at the employee’s responsibilities, service term, salary, as well as the time it would reasonably take the employer to replace the employee. Very senior employees may owe as much as 6 months’ notice. An employee’s failure to provide adequate notice will entitle the employer to sue the employee for “wrongful resignation”; the corollary of “wrongful dismissal.”
What happens if the employee quits and the employer sends her/him home?
If an employee gives notice of resignation and the employer asks the employee to leave before he or she has served out the notice period, it results in a wrongful dismissal. This is because the employer has ended the employment contract earlier than the reasonable notice period offered by the employee. As a result, the employer will be liable to pay additional pay in lieu of notice; generally equal to the notice of resignation offered.
How much notice is required?
Resigning is not always as simple as offering “two weeks’ notice.” Depending on the circumstances, more notice may be owing. Employees who are unsure about their obligations should seek out an employment lawyer to guide them through the process. Employers who believe that an employee may have breached the requirement to provide sufficient notice may want to consider retaining an employment lawyer to protect their interests.
This blog post was written by Nigel McKechnie, a member of our Employment Law team. Nigel can be reached at 613-369-0382 or at nigel.mckechnie@mannlawyers.com.
