Long-Term And Senior Employees Likely Must Give More Than Two Weeks Notice
The question of how much notice a departing employee must give his or her employer comes up often. The prevailing belief is that, unless a written employment agreement dictates, otherwise, a single pay-period or two weeks is sufficient. A recent Ontario Superior Court decision demonstrates this is not the case.
The employee was a salesperson who had worked for the employer for ten years. During that time, his job description and remuneration had changed several times. The employee, however, did not believe he was being compensated adequately for his role in the company. His employer, or at least the employer's wife who was responsible for payroll, thought the employee was making too much money.
The employee decided to move on and talked to another salesperson about the two of them departing for greener pastures. They decided to pitch their services to a large competitor who, despite having significant North American market presence, lacked a presence in the local market. The two employees met with the competitor and suggested that they set up a local office. Since the two employees represented 60% of the employer's sales business the competitor was eager to take them on.
Both employees resigned. The employee involved in the litigation handed in a resignation letter that ended his employment "effective immediately." The letter offered that he would remain for an additional two weeks if two conditions were met. The first was that the employer pay him over $30,000 immediately. This sum arose from the employer's belief the amount was owed for commissions. The employer disputed the amount. The second condition was that the employee would not take on any new work during the two weeks but would only complete existing work. The employer refused the conditions.
Litigation ensued and, as is the way of these matters, allegations included breach of the duty of good faith, misuse of confidential information and failure to give proper notice. The employee claimed that he had been constructively dismissed and that money for commission was owed.
On the issue of whether proper notice had been given, the judge reviewed the requirement that both an employer and an employee must give reasonable notice to terminate the employment relationship. What constitutes reasonable employment is dependent on how long it takes to replace the employee with a similar employee. In this case, the employee was not managerial but did hold a long-term sales position, (ten years) and was responsible for a significant percentage of the employer's sales. The judge ruled that notice should have been two months.
The judge noted that the offer to stay an additional two weeks was not valid because it was conditional.
In calculating damages, the judge looked at what the effect of losing the long-term employee was and ruled that there had been a drop in sales due to the improper departure. The employee was ordered to pay $35, 164 to his former employer. This amount was offset by a finding that the employer did owed money for commissions in the amount of $38,501.
The Lesson for Employees: If you are a long-term or senior employee with supervisory or managerial responsibilities you likely will be required to give more than two weeks notice. When terminating your employment be reasonable. Give your employer adequate time to find your replacement.
Gagnon & Associates Inc. v Jesso, 2016 ONSC 209 https://www.canlii.org/en/on/onsc/doc/2016/2016onsc209/2016onsc209.pdf
The content and the opinions expressed here is informational purposes only and does not constitute legal or professional advice. Nor does reading or commenting on it create a lawyer/client relationship with the author. I encourage you to contact me directly at adrianlawoffice@gmail.com if you have specific legal questions or concerns.
The author encourages you to share this article on social media.