employment canada british-columbia
Are provisions requiring employees to provide certain amount of notice before quitting, enforceable?
<p>To my understanding giving 2 weeks notice when quitting is customary, though not legally required. Can an employment contract stipulate that the 2 weeks are mandatory?</p>
<p>I'm curious how it would be enforced in practice. What's stopping someone from calling in sick for 2 weeks? Or claiming their new job requires them to work certain hours and the old one must cater to a different schedule?</p>
<p>Is it that if the company suffers damages because a person quit without enough notice the company could sue? Would this really be needed to be explicitly written into the contract? Would the company have to prove that they suffered damages that they otherwise wouldn't have if the employee continued his job for 2 weeks?</p>
<p>EDIT: this is assuming the job doesn't have a high level of responsibility, for example it's working in a retail store and not taking care of young children who require it.</p>

<p>While there is no statutory law in British Columbia that requires that employees give notice of resignation, employees can be contractually obligated to give notice and even absent a contractual requirement there is a common law obligation in Canada that employees give notice.  There's no fixed two week notice requirement, the amount of notice required depends on the circumstances.  It would be necessary for an employer to prove damages that resulted from an employee quitting without giving notice or sufficient notice.</p>
<p>An example of this would be <a href="https://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc2070/2014bcsc2070.pdf" rel="noreferrer">Consbec v Peter Walker</a> where the defendant was determined to have failed to give reasonable notice of his resignation:</p>
<blockquote>
<p>[212] Peter was obliged to provide Consbec with notice of his resignation. He did not give notice.</p>
<h3>The Law</h3>
<p>[213] The purpose of notice is to provide time for the employer to make
arrangements to have the work that the departing employee looked after by others,
or to find another employee.</p>
</blockquote>
<p>However <a href="https://www.canlii.org/en/bc/bcca/doc/2016/2016bcca114/2016bcca114.html" rel="noreferrer">on appeal (2016 BCCA 114)</a> the BC Court of Appeal determined that Consbec hadn't proven any damages had occurred as a result, so no damages were awarded:</p>
<blockquote>
<p>[82]        Although Consbec validly incurred costs and expenses of $5,875 as a result of Peter’s failure to give one month’s notice, it also saved $6,083 by not having to pay Peter’s salary during that period (i.e., $73,000/12).  Accordingly, it suffered no damages as a result of Peter’s failure to give notice.</p>
</blockquote>
<p>In many ways having a notice period specified in a contract is a much better option than ultimately leaving it up to a court decide.  There seems to be very little precedent for this, especially for non-fiduciary employees.  In Consbec the trial judge opted not to make a determination of what notice period was required in the case, something the appeal court determined was an error.  The appeal court determined that a one month notice period was reasonable, but didn't explain how it came to this determination.</p>
<p>On the other hand, lawsuits like these a very rare for low ranking employees with little or no authority. As in the Consbec case, it would be hard for an employer prove damages. If Consbec hadn't been seeking large damages on other claims it's unlikely it would've brought a lawsuit.</p>
<hr />
<p>Someone who tried to falsely claim to be sick in order to avoid having to work their remaining notice period would likely at minimum owe their employer the same damages as if they had failed to give notice.  If the sick time is paid and/or includes benefits they'd have to pay back or compensate the the employer for these wages and benefits. In addition, because they're still employed, they still owe a duty of loyalty to their employers that former employees do not, and so could face additional damages for doing things like working for a competitor.</p>
<p>Someone who started work at another job couldn't use this as an excuse to avoid working during the required notice period.  The person would have meet their obligations to both employers and both employers would be entitled to damages for the employee failing to do so. Again, the employee could face additional damages than those caused by their failure to work.</p>

<p>Even if a contract provided that two weeks notice must be given, or some other kind of notice must be given, under U.S. law, this would not be specifically enforceable (i.e. the only remedy would be money damages, not ordering the person to work), since specific performance of a contract to provide personal services is a form of involuntary servitude barred by the 13th Amendment to the U.S. Constitution.</p>
<p>The <a href="https://laws-lois.justice.gc.ca/eng/const/page-15.html" rel="nofollow noreferrer">Canadian Charter of Rights and Freedoms</a> is less specific. Section 7 is more clearly applicable and states:</p>
<blockquote>
<p>Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof except in accordance with the
principles of fundamental justice.</p>
</blockquote>
<p>But, common law rules regarding the remedies available for breach of a contract to provide personal services and the public policy considerations associated with statutory prohibitions in Canada against involuntary servitude, would probably give rise to the same result.</p>
<p>This said, facts always matter.</p>
<p>For example, there is a duty independent of contract to refrain from abusing or neglecting children that are in your custody until such time as they can be placed in the custody of someone else. If you are the babysitter for several young children caring for them, you can't be relieved of your duty to watch out for the well being of those children until you can hand them over to someone else, even if you have decided to quit your babysitting job and your further service is technically no longer voluntary. In that circumstance, a court order that you continue to care for the children, or criminal prosecution if you fail to continue to care for the children, isn't inconceivable.</p>
<p>Likewise, attorneys may be compelled to continue representing clients that they would like to terminate representation of under certain circumstances where the prejudice to the client of discontinuing work for the client is too great.</p>
<p>But this is quite distinct from an arbitrary two weeks notice situation.</p>
