Termination of
the Employment
Contract by the
Employee
Introduction
•Resigning from a job involves more than just saying “I quit!”
•Employers and, more importantly, the courts require clear
evidence of an intention to resign and “reasonable notice”.
•Absence of either of these can be deemed “wrongful
quitting”, which is what an employer can sue their former
employee for
•Likewise, if an employee gives a notice of resignation and
the employer responds by telling the employee to leave
immediately, the quit is deemed as "dismissal"
•In this case, the employer must give the employee
reasonable notice of termination, which should be the same
as employee's original notice of resignation
Has the
employee
really resigned?
Let’s look at the Objective test:
• Has the employee expressed a “clear
and unequivocal” intention to resign
from the job?
• Would a “reasonable person” of
normal intelligence looking at what
happened would conclude that the
employee had unequivocally and
voluntarily resigned from their job?
• Was this a forced resignation?
Case study: Upcott v. Savaria Concord Lifts Inc.
2009 CanLII 41348 (Ont. Sup Ct J)
•Upcott was having a bad day at work
•-had to fill in for an absent employee
•-had a run-in with human resources
•As a result, he got visibly upset and said, “I’m done”, throwing a temper tantrum and cleared
out his desk
•Later, he tried to return to his workplace and was denied by his employer, stating that they
“accepted his resignation.”
•Upcott filed a lawsuit claiming that he did not resign but instead was dismissed from his job
•The court ruled in Upcott’s favour citing that Upcott was an emotionally upset and angry and
his utterances did not constitute a valid resignation; therefore, the charge was on the
employer to not accept such a spontaneous declaration without question.
•The court awarded Upcott damages in line with his employment level and years of service
• The reasonable period of notice was supposed to be 7.5 months and he was compensated
based on that time period
Exceptions!
•If an employee expresses a clear intention to resign and then acts consistent with that intention, a court will find
that the employee has resigned
• For example, refusing to report to a new job assignment
•The court has allowed employees who have clearly resigned to later “resile” or change their minds, providing that:
-the employer has not informed the employee of acceptance of the employee’s resignation
-if an employee expresses a clear intention to resign and then acts consistent with that intention, a court will find
that the employee has resigned
Notice of Termination
•This is the period explicitly stated in the employee’s contract. If not stated, an employee is expected to
give their employer “reasonable notice”
•In lieu of this notice, an employee can be deemed to have breached their employment contract
•It should be noted however, that each province has differing employment standards legislation where
in some cases it is not a requirement for the employee to give notice of termination to their employer.
•For example, only the legislation of Alberta, Saskatchewan, Nova Scotia, Newfoundland and Labrador,
and Manitoba require employees to provide their employer with notice of termination
•On the other hand, every jurisdiction in Canada requires employers to provide notice to employees.
•The period of reasonable notice required of employees is normally lesser than that required of an
employer.
Wrongful quitting and Importance of reasonable Notice
Tree Savers International Ltd. v. Savoy 1992 CanLII 2828 (Alta. CA)
• In cases where a contract doesn’t mention the notice of termination, the courts decide the reasonable
notice, which can vary from a few weeks to several months.
• For e.g., in the TSI (Tree Savers International) Ltd. v. Savoy 1992 case, two employees quit after
giving two weeks of notice to the employer, with intentions of establishing a competitive business
against TSI.
• While TSI had not mentioned prohibitions against competition in their contract, the company sued the
two worker for quitting abruptly, causing a financial burden on the company due to search for
competent replacements.
• While the lower court evaluated the reasonable notice as 9 months, the Alberta Court of Appeal ruled
that “given their seniority and status,” the appropriate period of reasonable notice for the employees
should be more than one year.
• Due to substantial extra costs in travel, management expenses, and recruitment costs as a direct result
of the failure to give proper notice, both the employees were ordered to pay $73,100 per employee.
Damages calculation due to lack of Notice of Termination by
employee
Damages are calculated based For e.g. if the sudden Had the employee given However, in cases where the Because the cost of bringing
on actual costs incurred due departure of an employee notice, the employer may not damages caused or the costs the lawsuit and paying lawyers
to result of lack of notice by requires the employer to pay a have incurred those expenses. incurred are too small, may be greater than the
the employee temporary placement agency a the employers prefer not amount the employer will
fee to quickly send over a to sue the employees recover in damages.
“temp” worker then that cost
could be recoverable.
References
•Doorey, D. (2020). The Law of Work (2nd ed.). Emond Publishing.
https://online.vitalsource.com/books/9781772556209
