THE QUESTION
I work as a security guard and I have been in my position for six months. My life situation has recently changed and I am no longer able to work the shifts that my job contract requires. My contract states that I am required to give two weeks notice but I need to quit immediately without providing any notice. Can my employer take two weeks of wages from me, in lieu of me giving notice? What are the chances they will sue me for leaving without any notice?
THE FIRST ANSWER
Mary Rolf, labour and employment lawyer, Pink Larkin, Halifax
An employee’s obligation to give notice of resignation from a job is set out in two places: the applicable employment standards legislation in the province you work in and the termination clause in your written employment contract (if you have one). For example, in Nova Scotia, the Labour Standards Code (the Code) states that unless the employer has breached the employee’s contract, the employee must give the following written notice of resignation:
- One week if the period of employment is at least three months but less than two years; and
- Two weeks if the period of employment is two years or more.
Where the employment contract requires the employee to provide a minimum amount of notice of resignation, it is a breach of contract to provide less.
An employee who resigns without giving notice would be breaching both their contract and the Code.
Even so, an employer cannot refuse to pay the employee their last two weeks of wages for work the employee has already performed. What could happen, theoretically, is the employer could sue the employee for the breach of contract or make a complaint to their provincial labour board about the breach of the Code. However, it is rare for an employer to take legal action against a resigning employee unless the employer could prove that the employee’s lack of notice caused a monetary loss (for example, if the employee’s resignation meant that the employer couldn’t meet a client commitment, resulting in a direct financial loss). Again, this is rare.
Practically speaking, there are two things to keep in mind. First, it is common for employment contracts to state that once the employee gives notice of resignation, the employer has the right to waive some or all of the employee’s notice period. Second, end dates following a resignation are usually negotiable. An employee can explain why they are no longer available to continue working, effective immediately, and in most cases that would be acceptable.
THE SECOND ANSWER
Jonquille Pak, partner, JPak Employment Lawyers, Toronto
If you need to quit immediately and cannot give your two-week contractual notice, this does not mean that you are required to pay the employer two weeks of wages in lieu of notice. Furthermore, you are not required to forfeit two weeks of your earned wages to make up for the lack of notice. The employer must pay you all of your earned wages up to your last day of work. Generally, employment standards legislation prohibits employers from unilaterally withholding or making deductions from your pay without your consent. If your employer takes away your earned pay in these circumstances, you should contact your provincial ministry of labour about filing a claim for unlawful deductions from your pay.
Technically, a failure to comply with the notice provisions in the contract is considered a ‘wrongful resignation’, for which the employer can pursue a civil claim with the courts. However, the employer bears the onus of proving that it suffered damages from the employee’s lack of notice. In most cases, there are no damages or the damages are nominal and offset or exceeded by the costs associated with pursuing a civil claim through the courts. As a result, wrongful resignation lawsuits are rare and most often not worth pursuing. There may be exceptions for key personnel, such as C-suite level executives.
In my view, the chances of a company suing a former security guard for failing to provide two weeks of notice are low. If I were in your shoes, I wouldn’t be losing any sleep over it.
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