Friday, September 14, 2012

How to Quit Your Job

First off, let me disclaim this by saying that this isn't about constructive dismissal - I'm not talking about scenarios where you quit in response to actions by the employer which effectively breach your contract, such that you can claim to have been constructively dismissed.  That's an entirely different analysis, with many other considerations.  In this entry, I'm discussing a normal, genuine, and voluntary resignation.

Notice

There are myths abound about "two weeks' notice".  Firstly, many people believe that it is just a courtesy.  It is not just a courtesy; notice of resignation will almost always be required as an implied or express term of an employment contract.  Secondly, many people believe that two weeks is enough.  That is not true either, or at least, not always true.

So, first things first, check your contract.  Often, a contract will fix an amount of notice that the employee has to provide.  In that case, it's easy.  If you don't have a written contract, however, or it doesn't speak to notice of resignation, that doesn't mean you don't have to provide notice.

The common law implied obligation to give "reasonable notice" is one that cuts both ways.  When your employer fires you without just cause, they have to give you notice, or else compensate you on the basis of it.  Likewise, when you resign, you have to give the employer notice, and in the absence of a contractual provision specifying a notice period, that notice has to be "reasonable".

It doesn't often happen, but if the employer can quantify a loss because you left without notice, the employer can sue you for those losses.

So some things to think about:  How hard will you be to replace?  To bring a replacement up to speed on your work?  If you work in a front-line retail role, or something else where a replacement should be easily found or other people should be easily scheduled to cover your shifts, then two weeks (or potentially even less), should be enough.  On the other hand, if you're managing several complex projects, requiring a specialized skill set, and requiring detailed familiarity with the employer's processes and the files themselves, then it will likely be longer.

Statutory Notice

I include this as an afterthought, because it's rare.  But there are circumstances where the Employment Standards Act requires specific notice.

If your employer is engaged in a mass layoff, and your employer has given notice of termination to at least 50 employees at the same establishment in a four week period, then the employees must give notice if they wish to resign earlier - one week's notice if they have less than two years of service; two weeks' notice otherwise.

As well, there are notice provisions regarding statutory leaves, including that, if you're not coming back after parental leave, you have to give at least 4 weeks' notice.

And there's one which, while not a strict requirement, is a good idea:  When an employee has received notice of termination and is entitled to statutory severance pay, and the employee wants to leave before the end of the statutory notice period, the employee can preserve the right to statutory severance by providing at least two weeks' notice.  (I have had this arise in context of a long-service employee who obtained new employment very promptly after being terminated.  Remember:  Statutory severance isn't subject to mitigation.  So by ensuring that the employee gave two weeks' notice, this person got a soft landing going to a new employer immediately, and also got the statutory severance pay as a windfall.)

Process

Now that we know to give notice, how should you give the notice?  Well, the obvious answer is "in writing". And make sure you keep a copy for your records.  There are a lot of common sense things to be said here about not burning bridges, etc., but I won't go into that.

What I will point out is that many employers may waive the notice period.  It is not at all uncommon that an employer, when receiving notice, will say, "Don't worry about coming into work through the rest of the notice period", and escort you out of the building.  (The escort is a funny piece of paranoia, but so be it.)  In general, they still pay you out for those weeks.  Be ready for it.  Try to have your personal effects and workspace organized before giving notice in the first place - you may not have your x weeks to actually clean up.

Along the same lines, don't count on it.  Don't accept a new job to start September 1, then give your notice on August 30 figuring that you'll be sent home.  If it doesn't work out that way, you could be in a bind.  (I've seen it happen.)  Give your x weeks' notice with x clear weeks before your new start date.  Consider discussing a revised start date if your notice gets waived (for a windfall), or just enjoy your x weeks of paid 'funemployment', as I've heard it called.

Also, if there are things that are important to keep from your work computer, make sure you copy them before giving notice.  Personal emails, records, etc.  You may be locked out of your computer immediately upon giving notice.  However, and this is important, make sure not to take proprietary or confidential information.  That's what often lands employees in a lot of hot water.  Copy what's yours, but if you start going into copying what isn't yours - oh, maybe these blueprints I've been working on here will help me get a job with the competition - then you're basically asking to get sued.

Also, you need to remember that the other things you're receiving - health benefits, cell phone, etc. - may not continue long after you give notice.  While they strictly ought to be continued until at least the end of the notice period you've given, there's no harm in being cautious and getting your prescriptions refilled on the company drug plan before announcing that you're leaving.

Similarly with bonuses.  I've been asked before:  I want to put in my notice at the start of the month, but there's a big bonus coming up partway through the month.  Am I still entitled to it?  That's a nuanced area of law, and the answer is always going to be "maybe", perhaps weighted more to one side or another, and so, if you can avoid it, don't take the chance.  Wait, if possible, until after you have the cheque before you put in your notice.  Even if you are entitled to it either way, it's still better to have it first than to have to fight for it.

(For this reason, you might occasionally hear about seemingly-random mass migrations from large companies.  Suddenly, for no apparent reason, a company gets a spike in resignations - that is usually because they have just paid out a bonus.  The employees had, at some point or another, decided to leave, but didn't want to risk losing their bonus, so stuck it out just long enough to get the cheque.)

*****

This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation.  If you need legal assistance, please contact him for information on available services and billing.

13 comments:

  1. Will my employeer still have to pay me for the notice period if I was asked to leave immediately and I have only worked there for two months?
    My contract required two weeks notice and that is what I gave (in writing.

    ReplyDelete
    Replies
    1. I cannot give legal advice on this blog.

      I can say that, in the ordinary course, an employer who waives employee notice would be expected to pay the employee his usual income through the waived notice period. However, there are exceptions, particularly where the employer would be entitled to dismiss the employee without notice (or on lesser notice) anyways - i.e. during a contractual probationary period.

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  2. Hi Dennis.
    I'm considering giving notice January 1, but bonuses are not paid until April. I've been told verbally by my employer that "bonus payments are conditional on being employed at the time of payment." What document should I ask my employer for if I want to see the written details of their legal obligations around my bonus?
    Thanks.

    ReplyDelete
    Replies
    1. Hi Mike, thanks for your inquiry.

      Unfortunately, I can't give legal advice on this blog, and bonuses can be handled in any number of different ways. (Some employers have a formal bonus policy; some do not. Some employment contracts expressly speak to bonuses; some do not.)

      It can be a very fact-specific analysis.

      If you wish to consult with me regarding the issue, please contact me to inquire about my consultation rates and fee structures. (The contact link at the bottom of the blog entry would bring you to my website, which contains an inquiry form and my direct contact information.)

      Delete
    2. So, as a start, I should ask for a copy of my employment contract?

      Delete
  3. Hello,
    I signed a contract and it ends in April, I gave a letter of resignation with two weeks notice. But my employer refuse to accept it and says I am obliged to work untill the end of my contract.

    I checked the ESA, but I can't find anything to this effect.
    Thank you

    ReplyDelete
    Replies
    1. I'm unable to give legal advice on this blog, but I'll observe that fixed term contracts have different considerations.

      Delete
  4. What about if you are an FTE, have given your 2 weeks notice and on the last day of the 2 weeks notice the employer decides, on your behalf, that you will be staying on the project until end of year (Dec 31). And you have an existing contract to start the day after the 2 weeks notice period is complete? Is there grounds or do I have no rights?

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  5. Am I still required to provide a resignation notice if I am on probation and just a few weeks into the job? My contract does not state anything regarding notice period for voluntary employee resignation.
    Thank you.

    ReplyDelete
    Replies
    1. That's an interesting question, SS. Of course, there's my usual disclaimer that I can't give legal advice to address your personal circumstances; however, in general terms, there's no requirement for notice requirements to be reciprocal.

      Of course, the first question to ask would be why you think you're "on probation" - some people assume it's automatic, and it really isn't. I've seen employers make that mistake a number of times. Secondly, even if there's probationary language in the contract, you need to look closely to figure out what that *does* (not to mention whether or not the language is enforceable). I've seen cases where employers (even legally sophisticated ones) blithely asserted a "probation period" without specifying what exactly that means, and the courts won't necessarily interpret that the way an employer might hope. Even in the best case scenario, a probationary clause still isn't carte blanche for the employer to fire - the courts have at times found an obligation on the employer to engage in probationary assessments in good faith: It's a much lower standard to justify dismissing a probationary employee, but you still need to justify it.

      The central point to make here is this: Clear language can impose a right on the employer to dismiss without notice during the probationary period, without giving the employee any reciprocal right to resign without notice. In such a case, the common law default would continue to apply, that the employee is required to give 'reasonable notice'. Under most circumstances, one would expect such an employee's obligations to be quite minimal, though I'm sure there are exceptions. It would be interesting to argue that the existence of a probationary period *at all* factors into the calculation of the employee's notice obligations.

      On the other hand, some employers like to frame onerous provisions like probationary clauses in a very passive-aggressive way, talking in vague and mutual terms about the purpose of the probationary period being to assess suitability to the role and organization. I've seen language of this nature such that I could imagine making an argument that it can reasonably be interpreted as relieving the employee of any notice obligations, if it ever became an issue.

      Bottom line is that the general rule stands that an employee has to give reasonable notice, unless the contract specifies otherwise. However, there may well be a number of other issues to look at, in the appropriate case.

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  6. I started a position on Sept.21st, 2015. To take this position I had to become incorporated. Due to unbearable situation, I resigned today & as per my contract gave 2 weeks notice. The company that I worked at does not wish me to stay the 2 weeks nor pay me for them. I called the recruiting firm & they said they pay me not the company I was working at. They are looking into it now. They mentioned something about a contractor not having any recourse, not applying same laws as for an employee. Can you enlighten me please.

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  7. I have a similar problem I have been working in a position for an hourly rate which is not very competitive. I have recently been offered a better position. I tried to give two weeks notice, but was informed that if I looked at my contract I am required to give 3 months notice. I have been bullied into staying at my current position and I was instructed that I shouldn't think about leaving. If I break the notice period I also have to pay two months salary to my replacement. I am a teacher at a private school and I understand it may be inconvenient to replace me but not impossible.

    Right now I just feel like walking out the door. I reviewed my contact and I notice the employer didn't sign my copy and there are a lot of errors on my document. I was also told by a friend that I was never told to get legal advice. Can anyone help?

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  8. Is the 4 weeks notice for not returning after parental leave counted as 4 weeks before the original end date of the leave or 4 weeks before the last day of employment? The original end date of my leave is Oct 31 but I will be resigning giving two weeks notice before my last day of techical employment. It will not cause them any issues since my parental leave replacement was supposed to stay until until the end of my leave in any case.

    ReplyDelete