When an employment relationship ends, the party terminating the employment is responsible for providing the other party with notice. However, the length of notice required by a resigning employee is not the same as the length of notice an employer must provide. Several factors are relevant to consider that will impact the length of notice an employee must give to avoid wrongful resignation.

What Factors Determine Length of Notice to Avoid Wrongful Resignation?

The specific considerations of an employee’s position will dictate how much notice an employee should provide when they resign. These factors include but are not limited to the employee’s responsibilities, salary, length of service, and the time it will take for the employer to find a replacement for the employee’s position.

While some employees may only need to provide their employers with two weeks’ notice upon resignation, others could be penalized for only providing this amount of notice. Since the Employment Standards Act does not mention a requirement for a notice, the employment contract must be adhered to in order to avoid wrongful resignation occurrences. Adequate notice of resignation is generally the length of time it takes an employer to find a qualified replacement. 

When Does Wrongful Resignation Happen? 

Failure of an employee to give their employer adequate notice for their resignation may constitute wrongful resignation. Some employers include the length of notice required from an employee upon resignation in the employment agreement. This length of notice is binding and must be adhered to in the event of employee resignation.

Even if an employee is not in breach of their employment agreement, an employee who resigns without giving adequate notice may breach their fiduciary duty to the employer. This duty generally applies to employees in significant management positions who have a “directing hand” over the employer’s operation. 

The law does not impose this duty lightly, and it is not a duty imposed on every employee or manager. Suppose an employer, through the nature of the employee’s position, imposes trust and confidence on the employee on a repeated and consistent basis and trusts the employee to make independent decisions. In that case, the employee likely has a fiduciary duty to uphold.

Consequences of Inadequate Resignation Notice

If an employee fails to provide their employer with adequate notice of their resignation, the employer can sue for any damages that it can establish is suffered as a direct result of the employee’s wrongful resignation. 

These damages can include but are not limited to: loss of revenue from work the employer would not have been able to perform had the employee not resigned and recruitment fees incurred by the employer for finding a suitable replacement. If the employee’s position is such that the employer cannot provide regular services replacement is found, the damages could be substantial for the resigned employee.

If an employee is considering resigning, it is good to discuss the terms of resignation with the employer. If the conversation occurs verbally, the employee should email the employer to recap the discussion so the terms of resignation are in writing and can’t become disputed as wrongful resignation by the employer later.

Contact Us 

Whether you are an employer or an employee looking for assistance with workplace issues, disputes or employment relationships, our team of experienced wrongful resignation and employment lawyers at Achkar Law can help.

Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected], and we would be happy to assist.

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