Resignation Notice: What are Employers’ rights and Employees’ obligations?

| October 4th, 2017 | No Comments »

Question:  I work for a Bank as Project Manager. I was hired as a contractual employee on a fixed salary for two years ending in December. My employment letter states that a four-week notice is required if I resign.  My manager told that I should look for a change as Bank may not be able to renew the contract.  I found a new job and have submitted my resignation with two weeks’ notice. Can my employer detain me for the remaining two weeks or deduct my salary in lieu of two weeks of notice?

Answer:  Many employees expect their employer to provide them with reasonable notice before their employment is terminated.  But few realize that the obligation to provide notice is a two-way street: employees are also required to provide their employer with prior notice of their intention to resign.  Under employment law, the employee’s failure to do so constitutes a “wrongful resignation.”

Contrary to popular belief, employees generally cannot resign whenever they wish by simply providing two weeks’ notice.  Rather, the length of notice an employee has to provide will usually be set out in an employment contract.  If there is no such contractual requirement, it will depend on the employee’s position, responsibilities, tenure, and the time it would reasonably take the employer to find a replacement.  Should an employee resign without providing the full notice of resignation they agreed to, the employer is entitled to sue for wrongful resignation.  Few employers follow through with this, however.

In your case, since you originally agreed to provide your employer with four weeks’ notice of resignation, leaving on only two weeks’ notice may have legal consequences.  While your employer cannot force you to work the remaining two weeks, or deduct your salary for those two weeks (unless you clearly agreed to that in writing), it may sue you for damages for wrongful resignation.  Specifically, your employer may try to recover any losses it suffered as a result of you leaving on short notice, including lost sales, the costs of hiring your replacement, and the cost of overtime worked by other employees.  You should consult an employment lawyer for specific advice about your legal options.

Limit “Hitting the Slide” to the Playground

| August 15th, 2011 | No Comments »

Earlier this year, a former employee of JetBlue became a modern-day icon to disgruntled workers by way of an infamous resignation.  Following a confrontation with a passenger, airline attendant Steve Slater announced via intercom, “To the f—–g a–hole who told me to f–k off, it’s been a good 28 years.” He slid down the plane’s emergency chute, and minstrels will no doubt sing of his tale for years to come.

An article written in thestar recently reviewed Slater’s story as well as several others that have since occurred.  These public and publicized resignations seem to have a lot of employees on the edge of their seat, wavering in their judgment to perform their own theatrical grand-stand.

hittheslide.read-this.org is a website that encourages employees to quit their job “in style”.  Browsers are encouraged to send in videos that showcase how they “hit the slide” – a colloquial reference to Slater’s slide down the emergency chute.  Sounds pretty exciting right?

Before you grab your camcorder and hatch a scheme, consider some thoughts employment lawyer Daniel Lublin raises in the article.  Firstly, “Employers read blogs and Facebook profiles and twitter postings.”  Having your grand moment scattered about the web is not likely going to impress recruiters.

Lublin also says that “It’s a giant misconception that resignations require two weeks’ notice,” – If you are in a senior position or leave in a manner of bad faith, you may not only be losing your severance, but it could end up costing you a lot more if your employer decides to sue.  One of the outcomes of Slater’s case was jail time and a $10,000 fine.

Consider the consequences before “hitting the slide” – although you may entertain some coworkers and strangers on the net, this is one scenario where the costs definitely outweigh the momentary benefits.

Employment Ultimatum Leads to Wrongful Dismissal

| July 4th, 2011 | No Comments »

The difference between a termination and a resignation seems pretty obvious, but in case you missed the memo from HR, you cannot fire an employee and view them as having resigned. 

In an article written in the Metro, Daniel Lublin tells the story of Peitro Saladini, an overnight supervisor at Affinia Canada Corp.  Saladini was an exemplary employee, whose hard work and dedication was rewarded with a promotion to the daytime shift. 

When the work load increased, Paladini was told his shift would change, and he was to take on more responsibility without a pay increase.  Initially, he agreed, but began to feel that he was being taken advantage of.  When Saladini approached his boss and protested the change, he was told that if he failed to report to his new shift, the company would consider him as having resigned.   

Saladini sued for wrongful dismissal and won.  Lublin explains that, “Canadian courts are loath to uphold resignations proffered under circumstances of pressure or an ultimatum and instead will usually find that the employee had been fired.”

If you have recently resigned under pressure or an ultimatum, you may be entitled to severance you never received.  Contact Whitten and Lublin to learn more about your rights and entitlements.

Motor Home Fire Leads to Firing

| May 16th, 2011 | No Comments »

Employers often get outlandish explanations from employees who call in sick.  Typically, one call won’t result in dismissal.  In this case it did, even though the reason provided was a pretty good one. 

An article written in the Metro by Daniel Lublin highlights how easy it is for poor communication to lead to dismissal. 

Jansje Beggs contacted her employer Westport Foods following the loss of her mobile home and explained that she didn’t know when she would be in.  After a month without contact, Westport drafted a record of employment indicating that she had resigned.  A month later, Beggs arrived with a doctor’s note in hand explaining her absence.  She was surprised to hear about her resignation and even more suprised that her note failed to make a difference in Westport’s decision. 

The BC Court of Appeal recognized that there had been a misunderstanding between Westport and Beggs but concluded that Westport had effectively fired her when they failed to consider the newly produced medical documentation.

Although Beggs won her case, Lublin draws emphasis to the fact that she “found herself in a twilight zone somewhere between having abandoned her job and having been fired.”  He explains how important it is for employees to “Resist taking any steps that can be construed as voluntarily withdrawing from the workplace”.  Beggs was right to protest her resignation and seek council, but a doctor’s note will not always suffice.  Rather than chance it, employees should do their best to communicate clearly, even during distressing situations.

Lawyer faces criminal charges after clients act on his advice

| February 27th, 2008 | No Comments »

New York lawyer Felix Q. Vinluan, has been criminally charged on 13 counts after 10 nurses quit their job, allegedly on his advice.

The charges stem from an April 7, 2006 incident in which 10 clients of Mr. Vinluan mutually resigned from their position with Sentosa Care, a Long Island health care facility they worked for. The district attorney’s office said the mass resignation endangered 6 critically ill patients, 5 of which were children — because the resignations were not provided with advanced notice. 

The workers, who all immigrated to the United States from the Philippines in 2005, held at-will contracts. Vinluan claims, and his client’s attest, that he simply advised them that as an at-will employee, their employment could be terminated at anytime by either the employer or employee.

The County D.A.’s office claims that Mr. Vinluan went beyond his normal scope of giving advice and instead, encouraged the workers to submit their resignation. District attorney Lato said in a recent interview "If all Mr. Vinluan did was advise, rather than ‘encourage,’ he wouldn’t have been charged."

Vinluan asserts he is a target stemming from collusion between Sentosa’s attorney’s and County D.A. Spota after claims of a "secret meeting" between the two have surfaced. He further iterates Sentosa cannot afford to lose out on its pool of immigrant workers and is afraid of other worker’s doing the same as his 10 clients.

Canadian employees are not subject to at-will employment and any attempt to insert language into their employment relatinship that provides less generous severance that the minimum employment standards is invalid.

The issue of wrongful resignations is more interesting.  Similar to the employers’ obligation to provide advance notice of termination, employees must provide advance notice of their resignations, assuming there is no such contractual term that specifies another amount.  The amount of notice is dependant on how long it would reasonably take the employer to find a suitable replacement.  While wrongful resignation lawsuits in Canada are rare (proving a tangible economic loss is the reason), employees must still be careful.   

Even more interesting is whether or not Mr. Vinluan will be convicted.  The full article, found on Law.com, can be read here.

Daniel A. Lublin is a Canadian employment lawyer practicing exclusively in the law of wrongful dismissal. He can be reached at dan@toronto-employmentlawyer.com or through his website, www.toronto-employmentlawyer.com.