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THE QUESTION
I found a new job and gave my employer four weeks notice, even though I was only required by contract to give them two. I did this out of respect for the company. Unfortunately, after two weeks, they decided to walk me out and end my employment. Now I have a two-week gap with no pay before I start my new job. Is my old employer required to compensate me for the two weeks, even though they agreed on four?
THE FIRST ANSWER
George Huang, managing partner, Skyline Legal Group LLP, Calgary
If you work in Alberta, the Alberta Employment Standards Code requires a minimum of one week notice, assuming you are past the initial 90-day probationary period.
If you have written confirmation from your employer that they agreed to your employment ending in four weeks, you have a good cause to seek compensation for the remaining two weeks. Even if not, (assuming your contract is silent on notices) your employer has to provide minimum notice to terminate your employment and your own resignation letter is not proper notice from an employer to terminate your employment.
From the little information in the scenario, it can be assumed that the employer did not provide you notice to terminate your employment when you provided your initial four weeks resignation notice. At the least, there is a strong argument that the employer had to provide the minimum statutory notice under the Employment Standards Code, which should at least be one week based on your years of service and two weeks if you worked at least two years at the company. So long as you worked for two years, there is a good argument to seek payment for the two-week gap because your employer failed to give you proper notice.
It would be best to review your employment contract and consult with a legal professional familiar with employment law in your area to understand your rights and options in this situation.
THE SECOND ANSWER
Rahul Soni, employment lawyer, Soni Law Firm, Toronto
There is an old adage: no good deed goes unpunished. However, you may have legal recourse: you could be owed notice pay from your employer’s decision to terminate you before your resignation date.
If you were let go simply because your employer did not want to keep you until your resignation date, your termination would be classified as “without cause.” Under these circumstances, your employer will likely have to pay you notice pay. The amount of notice pay that you are entitled to could equal weeks or even months, depending on whether your contract has a termination provision that is actually enforceable.
Under Ontario’s Employment Standards Act, you are entitled to at least two weeks of advance notice or pay in lieu of notice so long as you have been employed for at least one year. If you were employed for more than one year and were first told about your termination on the day you walked out, your employer must pay you for the two weeks that you were in between jobs.
If your employment contract does not have a termination clause or it is unenforceable, your employer must provide you with common law notice, which is more generous than Ontario’s Employment Standards Act and often calculated in months. This can be especially important if your new job does not work out and you find yourself without an income. In that case, your former employer may owe you far more than the mere two weeks it thought it was saving by not letting you resign as previously agreed.
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