Reasonable Doubt: Beware of "wrongful quitting" lawsuits

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      By Kiran Brar

      You’ve decided to quit your job. Now what? Almost everyone has been there: that awkward time between when you’ve decided to quit and when you tell your employer that you’re leaving.

      A recent British Columbia Court of Appeal decision has expanded on the issue of what notice employees must give when leaving their employers.

      In Consbec Inc. v Walker, 2016 BCCA 114, the Court of Appeal overturned the trial judge’s decision and reduced the amount of damages owed by the employee, Walker, to his former employer, Consbec Inc., for quitting his job without providing notice. The trial judge had ordered Walker to pay Consbec more than $56,000 in damages for the costs Consbec incurred when it had to temporarily transfer one of its employees from Ontario to British Columbia until it could find a permanent replacement for Walker.

      The trial judge found that Walker was required to give reasonable notice of his resignation even though there was no written employment contract requiring him to provide a specific amount of notice. The Court of Appeal ultimately reduced the damages award to $5,875, stating that Consbec had not proved that many of the expenses it incurred until it found a permanent replacement for Walker were necessary.

      This decision serves as a cautionary tale for employers who may seek to sue employees who leave without providing any notice. Employers must first consider whether they will ultimately recover any damages from the employee and whether they can establish that they have incurred reasonable and necessary expenses in replacing the employee.

      Of note to many employees is that the Court of Appeal confirmed that if an employee quits before providing his or her employer reasonable notice, this is “wrongful quitting”.  The main purpose of this notice requirement on an employee is to provide the employer a reasonable period of time to adjust to the employee’s departure.

      There are a number of things employees should learn from this decision. Employees should look at their written employment contracts and determine if they are required to provide a specific amount of notice before resigning. If their employment contract does not specify an amount of notice, the common law in this Court of Appeal decision applies.

      Based on this decision, the length of notice required will depend on: the employee’s duties and responsibilities, salary, length of service, and the time it would reasonably take the employer to reallocate the former employee’s work or hire a replacement. More specialized or managerial type of jobs typically require a longer notice period from employees.

      These guidelines are similar to the things employers have to consider when deciding how much notice to provide employees.

      Although the Court of Appeal did not provide a hard and fast rule for notice requirements for employees, the court did provide these above useful guidelines. So before you pack up your desk and shut off your work computer for the last time, make sure you consider these guidelines before you walk out those doors.  

      For more information about the decision, please refer to: Consbec Inc. v. Walker

      A word of caution: you should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.

      Kiran Brar is a lawyer at Stevens Virgin who practises civil litigation and insurance defence.