Wrongful Resignation: What happens if I give less than the expected one month’s notice before quitting my job?

This blog was originally published in the Globe and Mail on November 29, 2021

I recently started a new job and the employment contract says we need to give one month’s notice. Right away I knew it wasn’t a good work environment and I wanted to leave. I recently got a new offer but they need me to start in two weeks. What happens if I leave with less than one month’s notice, as stated in my contract? Can the old company sue me?

Quitting your job without giving proper notice is considered “wrongful resignation.” Employers can potentially sue employees who wrongfully resign. Whether they are likely to do so depends on several factors.

It is a common misconception that employees are only required to provide two weeks’ notice. Longer notice periods can be specified in the employment contract. Where notice is not specified, courts imply reasonable notice by an employee based on their specialization, responsibilities and how long it might reasonably take an employer to replace them.

A breach of the employment contract is not a windfall for the employer. In wrongful resignation cases, an employer must show that the employee’s departure resulted in unavoidable business losses. This can include lost sales, cancelled projects or overtime paid to other employees. The wrongfully resigned employee’s salary is typically deducted from these damages to reflect the employer’s lower payroll costs. The employee is generally not liable for business losses sustained beyond the notice period. Keeping this in mind, often it will not be worth an employer’s while to pursue wrongful resignation.

However, there have been several cases where employers have obtained wrongful resignation damages. In many of these cases, the employees worked in sales or in professional or executive positions, and their unexpected departure resulted in a loss of revenue, clients and business opportunities for the employer.

In your situation, you should assess whether your early departure will lead to your employer sustaining business losses and whether there are ways to reduce these losses. Even if you can’t provide the full contractual notice, provide as much notice as you can. Finally, seek timely legal advice; it can be critical in situations involving potential legal liability.

The above is provided as general information only. Questions related to resigning your job or being terminated may involve complex legal issues. Contact us today if you would like to consult with our lawyers.