THE QUESTION
I own a retail store. One of my part-time employees just gave me his two-weeks notice. I don’t want him to continue working for me during this period. Is it legal for me to terminate his employment during his notice period? He has been working for me for about one year.
THE FIRST ANSWER
Laura Williams, founder and managing partner of Williams HR Law LLP, Markham, Ont.
In short, an employer can remove an employee who has resigned from the workplace before the resignation notice period ends, but not without compensation.
It’s not uncommon for employers to be concerned about employees working during resignation notice periods, particularly if employees are disgruntled, not leaving on good terms, and may be unproductive – or destructive – during the resignation notice. However, when an employee provides resignation notice, an employer cannot simply walk the employee out without compensation.
Once an employee provides resignation notice, an employer can choose to provide them with what they would have received during the notice period, in lieu of having the employee work during that time. This means that the employer is compensating an employee to not work, and may find itself short-staffed or having to pay someone else to do the work. Nevertheless, the employer may benefit by avoiding negative impacts on the workplace of a disengaged employee who is counting down to their last day, and may not be providing value to the employer in any event.
To limit resignation-related liability, employers should confirm the resignation in writing, so it is clear and unequivocal, and the employee cannot retract it. Employers should also ensure that employment agreements have resignation clauses that set out how much resignation notice is required to prevent employees from giving too little (making it hard for the employer to adjust operations) or too much (such that the employer finds itself having to tolerate or pay out a lengthy resignation notice period).
THE SECOND ANSWER
Pamela Connolly, lawyer and human resource adviser, Ukrainetz Workplace Law Group, Vernon, B.C.
We all know that removing Band-Aids hurts less when we rip them off quickly. It can be the same with employment relationships. In some situations, maintaining active employment during notice periods just hurts more. And by “hurts” I mean that it might compromise confidential and proprietary business information, interfere with other employment relationships or damage morale.
In the case of this retail store, it doesn’t sound like there is an employment contract in place which covers this situation. A well-drafted termination clause will permit employers to end employment during a resignation notice period by providing the employee with the lesser of: (1) the wages (and benefits in some provinces) payable to the end of the resignation notice period, or (2) the employee’s employment standards entitlements. My first recommendation: Start using employment contracts prepared by an employment lawyer.
When employees are terminated during their resignation notice period and there is no applicable contract language, they may still be entitled to common law reasonable notice of termination or pay in lieu. This is determined by assessing an employees’ age, length of service, character of employment and availability of similar work, amongst other factors, and is usually measured in months. Consequently, terminating employment during the resignation notice period could give rise to liability for several months of pay in lieu.
Another option is to maintain employment until the end of the two-week resignation notice period but relieve the employee of their obligation to attend work. The employee must be paid for that period and continue receiving benefits. Approach this strategy with caution, especially when employees give lengthy notice of resignation, because doing so may trigger a claim for constructive dismissal and/or interfere with benefit entitlements. That said, for this retail worker with short service, I’d likely recommend this strategy.
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