Howard Levitt: The flipside of wrongful dismissal is wrongful resignation — and it can cost employees
Howard Levitt and Rob Lilly
An employee, disenchanted with her job, decides it is time to part ways. She pens a touching resignation letter, hands it to her boss and leaves after two weeks’ notice. Case closed right? Perhaps. Now consider that she was integral to the business, left critical projects unfinished, client relationships hanging and colleagues working overtime to address the fallout. Does the employer have any recourse? Enter the world of wrongful resignation where employers, not employees, sue for insufficient notice.
Most readers are familiar with its better-known counterpart — wrongful dismissal — where an employer fires an employee without providing the requisite notice or adequate financial safety net for the employee to find another role. Just as wrongful dismissal can lead to damages for the terminated employee, wrongful resignation can lead to damages for employers left in the lurch by an abrupt departure. As it happens, oftentimes an employee resigning to claim constructive dismissal have no such case. But the employer has a great case for wrongful resignation. That is where, to date, most wrongful resignation cases come from — counterclaims in constructive dismissal actions.
Contrary to popular belief, the old adage of an employee giving two weeks’ notice before moving on to greener pastures is not universally acceptable in Canada. How much notice of resignation must an employee provide? Like most legal questions, it depends. The answer stems from three sources: (1) employment standards legislation, (2) employment contracts, and (3) terms implied by our courts.
Some provinces have legislated the minimum amount of notice required, whereas others have not. All of the Prairie provinces and the
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