We know that employers usually owe notice of termination. But can an employee just walk out without providing fair notice? No.

Many employers are vexed – and seriously inconvenienced – when an employee announces the decision to quit and departs without properly handing off the work. Employers don’t have to live with that.

It is well-settled law that, absent a contractually enforceable termination provision, an employee must provide an employer with reasonable notice of the employee’s decision to end the employment relationship.

See RBC Dominion Securities Inc. v. Merrill Lynch, [2008] 3 S.C.R. 79.
See also Oxman v. Dustbane Enterprises Ltd., [1988] OJ No. 2067 ONCA

The amount of notice that must be provided in advance of an employee’s resignation is not always easy to assess. The “high watermark” appears to be the trial decision in GasTops v. Forsyth, 2012 ONCA 134, where the trial judge held that the four individual defendants who were key employees ought to have provided notice in the range of 10 to 12 months. Note, however, that the Ontario Court of Appeal, while upholding the damage award, stated:

“Suffice it to say that we should not be taken to agree with the 10 – 12 months suggested by the trial judge or the factors he considered in reaching that period.”

On March 11 of this year, the British Columbia Court of Appeal held that the appropriate notice to be given by an estimator with five years of service was one month.1

In an older decision, the Ontario Court of Appeal upheld the findings of the trial judge, who decided that the appropriate notice for a key employee with only 18 months of service was three months.2

The most recent Ontario decision on the point is that of Justice Gordon on January 11, 2016 in Gagnon & Associates Inc. v. Jesso, 2016 ONSC 209.

This dispute raged for some 10 years, culminating in an eight-day trial that covered much more than the issue of how much notice Mr. Jesso ought to have provided to his former employer. In a decision of mixed successes, the court held that after 10 years of service, the employee – who was a very successful salesman making over $180,000/year – ought to have provided two months’ notice of termination.

The measure of damages in these situations is not the cost of replacing the employee, given that in many situations these costs would arise independent of the length of notice provided. Rather, the exercise is to assess the loss to the employer or increased costs occasioned by the inadequacy of the notice. By way of example, the employer may experience a loss of revenues or additional costs associated with obtaining or redeploying resources on an emergency basis.

Again, the amount of notice that a court will require in any particular fact situation is not always easy to predict, suggesting that the parties are perhaps well-advised to provide for this by way of written agreement.