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Date:
2014.07.31

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THE EMPLOYERS' EDGE

Employer Cannot Expedite their Employee’s Resignation Without Proper Notice

By now we all know that an employer in Ontario can terminate any employee at any time without just cause, so long as the termination is not due to any discriminatory reasons, and so long as the employee receives proper notice of termination.  If an employer is not comfortable with having an employee remain in the workplace during their reasonable notice period, they have the option to end the employment relationship immediately, by giving the employee pay in lieu of actual notice.  But what happens when it is the employee who gives advanced notice of their own resignation?

This question was recently addressed by the Supreme Court of Canada in Quebec (Commission des norms du travail) v. Asphalte Desjardins Inc. (2104 SCC 51).  The employee was Daniel Guay, and he had been working in Quebec for Asphalte Desjardins since 1994.  He gave his employer notice on February 15, 2008 that he would be leaving as of March 7, 2008 to take a higher paying job with a competing company.  Mr. Guay considered that the three weeks of notice would be sufficient for him to complete his outstanding work with Desjardins and properly train his replacement.  For its part, Desjardins attempted to dissuade Mr. Guay from leaving, and when their attempt failed, it decided to immediately terminate Mr. Guay on February 19, 2008.

The Civil Code legal system in Quebec is different from the common law system in the rest of Canada, in that it requires both employer and employee to give notice when either intends to end the employment relationship.  However the employment law principles generally remain the same.  In this case, the Commission, on behalf of Mr. Guay, complained that the employer failed to give proper notice when it terminated him.  The employer on the other hand, argued that when Mr. Guay gave notice of his resignation, it was released the obligation to provide notice of termination.

The Supreme Court sided with the Commission and the employee.  A contract for employment is not automatically ended upon receipt of a notice of termination or resignation, and the parties have to honour the terms of the employment relationship until such time as the date specified in the notice given by the employer or employee.  Accordingly, the Supreme Court held that an employer who receives a notice of resignation from an employee cannot terminate the employment without giving notice of termination or pay in lieu of notice.

Desjardins therefore wrongfully dismissed Mr. Guay and was required to provide him with pay in lieu of notice of termination.  Since Mr. Guay’s resignation was to take effect three weeks after the date he was terminated, the employer had to pay him an amount equivalent to three weeks’ pay.

This decision is a clear illustration for how an employer in similar circumstances is permitted to manage its workplace.  If an employee gives notice that they will resign effective three weeks from today, an employer is entitled to end the employment immediately, provided that they pay the employee an amount equivalent to what they would have earned up until the date their resignation would take effect.

The lawyers at CCPartners are experienced in dealing with employee resignations and can help you ensure that your company fulfills its legal obligations, and enforce any rights, any time an employee is resigning.

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.

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