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THE QUESTION
I have given my retirement notice at work. We have agreed to a 14-month notice period. What rights do I have if they change their minds and decide to have me leave before the 14 months are up?
THE FIRST ANSWER
Muneeza Sheikh, founding partner, Muneeza Sheikh Employment and Human Rights, Toronto
If you have given notice to leave your job and have clearly outlined your end date, your employer may be obligated to adhere to it. What the reason might be, retirement or otherwise, is largely immaterial. People resign from their employment routinely and in most cases provide nothing more than the standard few weeks.
In some cases, employees (particularly long-tenured ones) will provide ample and lengthy notice. They often do that because, from an operational (and sometimes loyalty) perspective, they want the employer to have enough time to transition the role to another person that the departing employee may train. If you provide a lengthy notice of your resignation from your role and the employer has agreed to the 14 months (I hope it was in writing), then, absent misconduct on the employee’s part, the employer has to honour the deal, like any other deal.
Normally, if you resign, the employer can waive the requirement for you to continue to work and just pay you for that period. Unless the employer has expressly agreed to the 14 months (in this case, I would be interested to see what the agreement says), they can just fire you before the expiry of that 14-month period if it is cheaper for them.
If the notice they owe you is less than 14 months, then there is a good business case for the employer simply rendering a termination and paying you what you are owed, either under the appropriate minimum standards legislation or the common law. If the employer owes you far less than 14 months of reasonable notice and absent a clear agreement on the 14 months’ notice you provided, I would be wary of being exited earlier. If they do that, you might be tempted to sue them for breaching your 14-month deal. If you can prove that they agreed to that deal, you might have a case.
THE SECOND ANSWER
Menachem Freedman, lawyer, HHBG Lawyers - Employment Justice, Vancouver
Employees are often unaware that, just like an employer must provide notice before they terminate someone’s employment, employees also have to provide notice before they resign. This also applies when an employee wants to retire because, in legal terms, resigning and retiring are just different ways of describing a situation where the employee and not the employer decides to end the employment relationship.
Generally, the amount of resignation notice that an employee has to give is pretty short, but the employee and employer can agree on a longer period of notice. It sounds like this is what happened with your employer. That being said, when dealing with such a long period of notice, it is best to put the agreement in writing. Ideally, that written agreement would explicitly deal with what would happen if the employer decided to have you leave earlier than your resignation/retirement date.
If you can’t make such an agreement, then the starting point to understand your rights is to look at any resignation clause in your employment contract. Many employment contracts have resignation clauses that could address your situation. If you have a resignation clause in your contract, review it with a lawyer to determine if it is enforceable.
If you don’t have a contract with an enforceable resignation clause that addresses the situation, the employer can let you go during the notice period, but it will have to pay you severance if the termination is without cause. The amount of severance could be less or more than the amount of resignation notice you provided; it would depend on a number of factors that would be unique to your situation. If you are let go, a review with a lawyer would be essential to determine how much severance you would be entitled to.
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