Do you have to give two weeks notice in Canada?

Do you legally have to give 2 weeks notice in Canada

Yes, you do have to give notice of your resignation in Canada. The common law imposes a duty to provide notice of resignation on all employees.

However, you don’t have to give two weeks’ notice of your resignation in Canada per se. Rather, you have to give a “reasonable” amount of notice of your resignation, which may be more or less than two weeks’ notice. The amount of reasonable notice an employee has to give will depend on their specific circumstances, as discussed below.

The law of reasonable notice of resignation

The obligation to give reasonable notice is a general common law obligation of all employees. In Sure-Grip Fasteners Ltd. v. Allgrade Bolt & Chain Inc., [1993] 45 C.C.E.L. 276 (Ont. Gen. Div.) at pages 281-282, Justice Chapnik found:

An employee is obligated by law to give reasonable notice of termination to his or her employer, even absent a written contract of employment. If the resignation is voluntary, the notice to which the employer is entitled becomes a matter of law, not merely a matter of conscience or responsibility on the part of the employee. The main purpose of the notice of resignation is to allow the employer a reasonable time to find a replacement.

Wrongful Resignation

Failure to give to reasonable notice of a resignation is called a wrongful resignation. The concept of wrongful resignation is the same as wrongful dismissal. Wrongful dismissal is an employer’s failure to provide reasonable notice of an employee’s termination (i.e. dismissal, firing, downsizing etc.). Thus, much like how an employer owes an employee reasonable notice (or pay in lieu, which is also called severance), an employee likewise owes his or her employer reasonable notice for when he or she resigns.  

How much notice do you have to give when you resign in Canada?

The amount of notice required of an employee when he or she resigns will be a function of that employee’s position with the employer and the time it would reasonably take the employer to replace him or her or otherwise take steps to adjust to the loss. 

For example, in Gagnon & Associates Inc. et. al. v Jesso et. al., 2016 ONSC 209 (CanLII), the Ontario Superior Court held that a senior salesperson in a niche industry had to give two months notice of his resignation:

Although Jesso was a salesperson with no managerial responsibilities, he was a senior employee with ten years’ experience and was responsible for a significant percentage of GA’s sales.  The evidence at trial established that the market for experienced HVAC salespersons was limited and that a replacement hire could not be made until September of 2006.  In addition, Jesso knew that Comeau, the other senior salesperson would be leaving GA on the same day thereby putting GA in a significantly difficult position.  In these particular circumstances, a notice period of two months would have been appropriate.

http://canlii.ca/t/gmvlz at paragraph 40.

In another case, the Britsh Columbia Court of Appeal held that an Estimator with five years service who made about $75,000 per year ought to have given one month of notice of his resignation (see Consbec Inc. v. Walker, 2016 BCCA 114 (CanLII)).

Although the cases cited above dealt with, generally, salespeople (who tend to get sued more than others), we know that more senior, long-standing employees in positions of power owe more notice than junior, less tenured employees. Consider this: It takes Burger King more time to replace a senior VP of finance than it takes to replace a dishwasher. Accordingly, a senior VP of finance may owe several months of notice of her resignation whereas a dishwasher would owe significantly less notice of resignation. At the same time, we know that few employers would sue a dishwasher for failing to give reasonable notice because the damages would be nil; however, some employers may be more inclined to sue senior executives for failing to give reasonable notice.

Notice according to an employment contract

Alternatively, parties (i.e. employers and employees) can displace the common law requirement for an employee to provide some distant amount of “reasonable” notice by contracting at the time of hire a specific amount of notice an employee must give when he or she resigns. Many employers, as a result, do insert a two-week resignation notice period in their employment contracts. Perhaps this standard ‘two-week’ resignation notice period in employment contracts is the reason many people in Canada believe they have to give two weeks notice when they quit.

However, to be clear, while an employment contract can set out the amount of notice an employee must provide when they quit, where there is no written employment contract, employees nevertheless have a common law duty to provide reasonable notice of resignation.

What happens if an employee fails to give enough notice of resignation?

Employers can sue employees for failing to give reasonable notice of resignation. Employers can recover damages based on what the employee’s failure to give notice cost the company, but not on the cost of the employee leaving the company. In addition, the employer’s costs saved in not having to pay the employee’s salary during the period of notice will be deducted from any damages the employer may have suffered. Thus, damages that an employer can be awarded for wrongful resignation is its costs in excess of what it saved by not having to pay an employee’s salary during the notice period. 

Can you be fired after giving notice Canada?

Yes, you can be fired after giving notice of resignation in Canada. However, your employer would have to provide you pay for the amount of time your resignation notice period is unless your contract said otherwise. For example, if you had to give two weeks notice of your resignation, but you were fired immediately after giving your two-weeks notice, your employer would you owe you two weeks pay.

If you give two weeks notice does your employer have to pay you?

Yes, the duty to give reasonable notice of your resignation works both ways. While an employee must provide notice of resignation, an employer must pay an employee for that given notice period even if the employee is sent home or fired (see above) unless their contract said otherwise.

Summary – do you have to give two weeks notice of resignation?

Everybody must give some amount of notice when they resign from work. The amount of notice depends on how senior an employee is and how difficult it is to replace their job. Alternatively, the amount of notice owed depends on the terms of the employment contract if there is a notice period clause in such an agreement.

Resignation Related Posts:

  1. Employment lawyer for resignations
  2. When it’s not clear an Employee has resigned
  3. Retracting a resignation in Ontario

Dutton Employment Law is an employment law group. Contact us if you have any questions concerning resignations or employment law in general. We offer free consultations.

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