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THE QUESTION
I agreed to start a job in a week but I just found out I got another job that pays better and is closer to where I live. I’d like to take the second job. Do I need to give two weeks’ notice for that first job, even though I haven’t started yet?
THE FIRST ANSWER
Jonas McKay, barrister and solicitor, HHBG Lawyers - Employment Justice, Vancouver
You should give notice to the first job.
If you signed an employment contract with the first job, give the amount of termination notice you agreed to in your employment contract. If you didn’t sign an employment contract or if your contract doesn’t say how much notice you have to give, then you should give two weeks’ notice.
The first employer won’t normally make you come in to work for just a week or two. This normally doesn’t make business sense.
However, you did make a commitment to the first job, and they were counting on you to start on a specific date. If you don’t give the required notice and the employer doesn’t have time to find a replacement and loses money or suffers damage to their business because your role isn’t filled during the notice period, you could theoretically be held liable for damages that occurred because you failed to give the required notice of termination.
The cautious approach is to give notice of termination. Chances are that this first employer won’t make you start the job. But the notice gives the first employer a fair chance to find your replacement and you minimize the risk of a claim for damages based on you failing to give notice.
THE SECOND ANSWER
Tareq Shahwan, employment lawyer, Randy Ai Law Office, Toronto
Many employees are surprised to learn that an employment relationship can be legally binding before the first day of work. An employment agreement is formed once there is an offer and acceptance, along with clarity on the essential terms – typically the position, start date, compensation and basic duties. That contract can be written, verbal or confirmed through email and it does not require the employee to physically begin work to be enforceable. In other words, once a candidate says “yes,” they are no longer free to simply change their mind without potential consequences.
If a written contract has been signed, the employee should review any resignation or termination clause addressing how much notice is required if either party wishes to end the relationship. Many agreements do not expressly contemplate withdrawal before the start date, which means the common law fills the gap.
Under common law, employees owe a duty to provide reasonable notice of resignation, which is generally meant to give the employer a fair opportunity to adjust, such as re-posting the role, restarting interviews or reallocating responsibilities. What counts as reasonable varies depending on the role, industry, recruitment effort and how disruptive the departure would be. For an entry-level position, notice may be as short as two weeks; for a specialized or senior role, notice could be longer.
Even when taking another offer, providing reasonable notice and communicating professionally is both the legally prudent and reputationally wise approach.
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