The question
I found a new job that wants me to start in two weeks. However, my current employment contract says I have to give four weeks’ notice. What happens if I just give two weeks’ notice to them? Could they sue me?
The first answer
Busayo A. Faderin, senior associate, Monkhouse Law Employment Lawyers, Toronto
Just as employers are required to give reasonable notice of termination to employees, the law in Canada also requires employees to give reasonable notice of resignation to their employer. At a minimum, the employment legislation in several provinces typically requires employees give at least one to two weeks’ notice depending on their length of service.
Reasonable notice, however, can range from the minimum amount of notice set out in the employment legislation to 12 months or more for high-level executives or management. Some of the factors to consider are how long it may take for the employer to hire and train a replacement, the nature of the work and the position, and whether other employees have resigned at the same time.
Employees and employers can alter the reasonable notice amount by entering into a contract that stipulates a specific amount of notice of resignation that is to be provided. Any provision in the employment contract that stipulates the amount of notice of resignation to be given by the employee overrides the reasonable notice of resignation period and the minimum resignation notice period provided by statute. Therefore, an employer could potentially sue the employee for wrongful resignation for failing to provide the agreed-upon notice.
Most employers, however, do not choose to pursue such lawsuits against their former employees unless they suffer significant damages from the inadequate notice. It’s always a good idea to try to co-operate with your employer regarding the amount of notice you can provide. In some cases, employers will waive the notice requirement by the employee and opt for the employment relationship to end immediately. In that case, the employer will need to pay the employee for the resignation notice period.
The second answer
Mary B. Rolf, associate, Pink Larkin, Halifax
If the employment contract requires four weeks’ notice, it is a breach of contract to provide less. An employee in this situation could theoretically be sued for a breach of contract, but it is rare for an employer to actually take legal action against a departing employee unless the employer could prove it sustained monetary damages as a result of the employee’s lack of notice.
Two things to keep in mind:
- It is common for resignation clauses to state that once the employee gives notice, the employer has the right to waive some or all of the employee’s notice period.
- Start dates are almost always negotiable.
An employee in this situation can advise the new employer that their current contract requires four weeks’ notice, and it’s not possible to start in two weeks unless the current employer agrees to waive part of this notice period. The new employer should take this as a good sign that the employee honours their commitments, but if there is pushback or unpleasantness, this is also helpful information for an employee to know before they take any steps to resign from their current job. As long as the new employer does not exhibit any red flags over changing the start date, the employee can then give their current employer four weeks’ notice. When giving notice, the employee can advise that they are negotiating a start date for the new job and confirm their end date with the employer.
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