By Andres Barker, Lawyer.
Many employees who leave a job voluntarily refer to handing in their “two weeks’ notice” that they are quitting. But is this practice actually required by law? It’s a question we often hear from resigning employees.
Unlike the notice of termination requirements imposed on employers by employment standards legislation, there is no legislated requirement in British Columbia for employees to give an employer any notice whatsoever of their departure. However, this does not mean that employees are not still required to provide notice under more general contract law principles. The recent British Columbia Supreme Court decision in Consbec Inc. v. Walker addressed this issue and affirmed that there can be financial consequences to employees for not providing proper notice.
Consbec concerned an employee who headed the Western division of the employer’s operations, and who left his employment to set up a business that directly competed with the employer. The employee’s role had generally been to “grow the business” of the employer through the solicitation of contracts, and in some cases he held a supervisory role on projects.
After a period of dissatisfaction, the employee provided his written notice of resignation, effective that same date. As a result of the employee’s departure, the employer incurred the costs of having to temporarily relocate one staff member and permanently relocate another in order to look after their interests in the region formerly covered by the employee.
The court affirmed that the purpose of an employee providing notice of resignation is to give the employer time to make arrangements to have the departing employee’s work managed by others, or to replace her. The length of notice is dependent upon the employee’s responsibilities, her length of service, and the time it would reasonably take the employer to replace her or to take steps to adapt to the loss of her service.
As the employee in Consbec did not provide any notice, the employer was deprived of the opportunity to manage his departure and the employee was therefore liable to cover the relocation costs it incurred. These included travel and mileage expenses, room and board, moving expenses, and expenses related to the sale of the replacement staff member’s home that were covered by the employer. The court assessed $56,116.11 in damages against the employee.
Implications for Employees and Employers
Court decisions addressing a failure to give reasonable notice of resignation generally involve a key employee departing in a manner that causes real financial damage to the employer’s business. In most resignation situations, however, the employer will not suffer any demonstrable loss such that legal action against the departing employee would be necessary or justified.
Of course, as with many aspects of the employment relationship, it may be wise to include an employee notice clause in your employment contracts. The decision in Consbec is an important reminder that there will be times when an employee’s departure will have a significant financial impact on the employer’s business, such that both parties will benefit from a written contractual term that specifies how much notice resigning employees must give. In situations where no such term exists, employees should provide notice commensurate with their level of responsibility and which provides employers with proper time to replace them. If an employee fails to give sufficient notice, an employer should clearly and quickly advise him that more time is required for the employer to manage the impact of his departure.
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