The current employment and labour landscape have been complicated by the COVID-19 pandemic. While many businesses are allowed to resume normal (or near-normal) operations, some are struggling to staff these operations. 

Employers are finding that laid-off employees are declining to return to work for a number of reasons. This has left employers short and scrambling to fill necessary positions. 

Failure to inform an employer of an intent to resign, and failure to give what is known as reasonable notice, can result in a claim against the employee for wrongful resignation. 

The unfortunate reality is that the pandemic is likely to give rise to an increase in claims of wrongful resignation in Ontario.

To help both employees and employers understand wrongful resignation and the recourse available to them, we have gathered together all the necessary information. 

What is Wrongful Resignation?

Wrongful resignation is a common law claim that comes about when an employee resigns their position without supplying the employer with proper notice. 

Most people are familiar with wrongful dismissal where an employer terminates an employee without cause and fails to provide reasonable notice or pay in lieu notice. Wrongful resignation is essentially the same thing but from the other side. 

Wrongful resignation only occurs when the employee has failed to provide proper notice AND the employer can demonstrate a provable loss after attempting to mitigate these losses by finding a replacement. 

What is Considered Reasonable Notice?

When it comes to giving notice of resignation in Ontario, you may be wondering what is considered ‘reasonable.’ Do you have to give 2 weeks notice in Ontario?

The truth is, there is no legal requirement under the Employment Standards Act or similar legislation requiring an employee to provide a specific amount of notice before resigning.

The law simply states that employees must give reasonable notice. 

To determine what this might be, employees should first consult their employment contract. It is possible that the terms for resignation, including the appropriate amount of notice, are spelled out in the contract. If employees do not provide reasonable notice as specified in their contract, they may be liable for breach of contract. 

If there is no specified contractual obligation, the standard of what is reasonable can vary between jobs and industries. 

It is worth noting that employees in the retail, construction, and service industries tend to give shorter notice than professionals, executives, and managers.

You can think of reasonable notice as the amount of time it would take an employer to replace the employee and this will depend on the employee’s position and the length of service. Highly skilled employees will take longer to replace, requiring a long notification period.  

How has the COVID-19 Pandemic Impacted Reasonable Notice?

Employees that have been laid off due to the pandemic are considered to be on Infectious Disease Emergency Leave (“IDEL”) unless and until someone makes moves to sever the employment relationship. 

This designation means that an employer can recall the employee at any time. Should the employer then learn, for the first time, that the employee will not be returning to work for them, that is considered a resignation. 

While there are lots of people unemployed due to the pandemic, recruitment and hiring have been incredibly leaving employers in desperate need of workers. This means it may take an employer longer to find a replacement, increasing the considerations for reasonable notice. 

If the employee fails to provide reasonable notice, the employer may be able to sue for damages incurred as a result of losing that employee. 

What are the Damages for Wrongful Resignation?

Employers are able to sue for damages on the basis of wrongful resignation when the employee has failed to provide reasonable notice. 

While there are many potential opportunities to claim wrongful resignation, follow through has been relatively rare as employers will have to prove their damages. In other words, employers will need to prove that they suffered losses because of the short notice. 

Damages are measured by the losses or potential losses the employer experienced during the notice period, minus the employee wages and benefits that would have been paid out during this period. 

Employers are not able to recover damages that would have occurred anyway, even with reasonable notice. If a business loses clients after the resignation of a particular salesperson, for example, this is seen as an unavoidable loss and is not influenced by reasonable notice. 

To make a successful claim of wrongful resignation, courts have consistently determined that the following elements must be present:

  • The employee has resigned their position voluntarily
  • No cause exists for the resignation, like a demotion or a decrease in remuneration 
  • The employee failed to provide the employer with reasonable notice
  • The employer suffered damages as a result of the resignation without reasonable notice
  • The employer must make an attempt to mitigate damages by seeking a replacement for the employee

Protect Yourself from Wrongful Resignation in Ontario

Employees and employers can protect themselves from wrongful resignations by taking a few proactive steps. 

For employees, if reasonable notice is not specified in your contract of employment, be sure to give your employer what they will need to replace you. 

If you are a salesperson, a high-ranking employee, a manager, executive, or highly-skilled employee, it may take your employer more time to find a replacement; in these scenarios, consider giving them more notice. If you are uncertain about the requirements for reasonable notice, it is best to consult with an employment lawyer. 

For employers, the pursuit of a claim of wrongful resignation should never be carried out without assistance from a knowledgeable employment lawyer. And because these claims can be extremely difficult to prove, and to win, it is important to take steps to prevent the situation before it occurs. 

It is a good idea to include resignation notice periods in all employment contracts. This will reduce the challenges you face should a justifiable claim arise. 

Reach Out to RBHF for Support with Wrongful Resignation in Ontario

Our Kingston lawyers at RBHF are well versed in labour and employment law and can assist both employees and employers in navigating the complications of wrongful resignation in Ontario. 

We can develop contracts that include proper notice requirements, and prevent problems for both sides well before they begin. We pride ourselves on communication, helping our clients meet their desired results. 

If you have any questions or concerns about wrongful resignation in Ontario, we encourage you to contact us. We’re standing by and ready to help.