How Much Notice of Resignation Must an Employee Provide?

December 10, 2014

It is a commonly held belief that employees must provide two weeks’ notice when they resign from their employment. However, this blanket statement does not necessarily reflect the applicable legal requirements. While two weeks’ notice is appropriate in many cases, some employees may be required to provide less notice, and other employees may be required to provide significantly more.

How much notice of resignation is an employee required to provide? The answer depends on several sources, including: (1) the applicable employment standards legislation; (2) the employment contract; and (3) the common law (if it has not been modified by an enforceable employment contract). The focus of this blog post is on the enforceability of a contractual resignation requirement. In the absence of an enforceable contractual provision, employers should consult the applicable legislation and seek legal advice regarding the common law requirements.

In BlackBerry Ltd. v Marineau-Mes, 2014 ONSC 1790, BlackBerry Ltd. sought a declaration that Martineau-Mes violated his employment contract by failing to provide sufficient notice of his resignation. Martineau-Mes was unhappy about his future prospects at BlackBerry and accepted a position with Apple. On December 24, 2013, he gave BlackBerry two months’ notice of his resignation.

His employment contract contained the following resignation provision:

4.1 Termination by You – You may resign from employment with BlackBerry at any time upon providing six (6) months prior written notice. You will continue to provide active service during the notice period, unless the requirement for active employment is expressly waived in whole or in part by BlackBerry. Upon resignation, you will have no entitlement to compensation or damages of any kind except for unpaid base salary for the six month notice period, vacation earned to the Date of Termination (as defined in paragraph 4.5(b) below) and reasonable unpaid expenses in accordance with prevailing BlackBerry policies. All of your benefits will cease upon the Date of Termination. For greater certainty, termination by you for Good Reason (as defined in paragraph 4.5(b) below) will not constitute a voluntary resignation for the purpose of this subsection 4.1.
BlackBerry applied to the Court for a declaration that Martineau-Mes was not entitled to leave his employment until the expiration of the six-month notice period contemplated in his employment contract.

The Court concluded that, given Martineau-Mes’ senior position, BlackBerry legitimately required his services for six months as part of his transition out of the company. The Court rejected Martineau-Mes’ argument that the resignation provision was an unenforceable non-competition clause. The Court further held that BlackBerry was entitled to a declaration that the employment contract was binding on the parties and that Marineau-Mes was obligated as set out in the contract to provide six months’ prior written notice of his resignation from employment.

As illustrated in this case, a resignation clause in an employment contract can provide a significant benefit to employers because it allows the parties to agree on a longer notice period than that required by employment standards legislation. While an employer may be able rely on the common law duty to provide reasonable notice of resignation in the absence of a resignation clause, it can be difficult to predict the amount of notice required by the common law. The use of a resignation clause in an employment contract provides clarity to both parties regarding the amount of notice required. For these reasons, employers would be well advised to consider the inclusion of a resignation clause in their employment contracts.

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