This blog post is written by our articling student Jason Edwards
More often than not, when an employment relationship ends, it is the employer who is scrutinized. Did they give the employee adequate notice, or pay in lieu of notice? The requirement for appropriate notice responds to the concern that employees invest time and effort into the employer’s business, and will need something to cushion the blow of losing their job. But what happens when the employee terminates the relationship? What are employers owed and how can they pursue their interests?
Under subsection 73(1) of the Nova Scotia’s Labour Standards Code, employees are required to provide their employer with notice:
Termination of employment by employee
73 (1) Where an employee has been employed by an employer continuously for three months or more, the employee shall not terminate the employment unless the employer has been guilty of a breach of the terms and conditions of employment, without first having given
(a) one week’s notice in writing to the employer if the period of employment is less than two years; and
(b) two weeks’ notice in writing to the employer if the period of employment is two years or more.
In other words, if a person has worked somewhere for less than three months, they do not owe the employer any notice. If they’ve worked there for more than three months but less than two years, they owe the employer one week of notice. If they’ve been there for two years or more, they owe the employer two weeks of written notice.
What can an Employer do about it when an Employee leaves without providing notice?
When an employee fails to give proper notice, the employer may seek to recover as much money as the employee would have been paid in the mandated notice period. This means that an employer can recover one week’s wages from an employee who has worked for at least three-months but less than two years, and two weeks’ wages from an employee who has worked for the employer for more than two years.
However, there are three important details that colour section 73(1).
First, notice is not required in situations where the employer has failed to fulfill their end of the relationship. If the employer fails to pay the employee, drastically reduces the employees’ hours or wages, or otherwise makes continuing the employment untenable, the employee is entitled to sever the relationship without notice.
Second, the employer cannot unilaterally recoup the wages that they feel they are owed. Rather, they must make a complaint to the Director of Labour Standards. Only when a complaint is made and an order is issued are they entitled to recover anything from the employee.
If the employer refuses to pay wages owed, but has not made a successful complaint to Labour Standards, the employee may file a complaint for unpaid wages. Section 79A(1) of the Code restricts employers’ discretion to withhold pay:
An employer shall not, directly or indirectly, withhold, deduct or require payment of all or part of the employee’s wages for the purpose of paying for a loss that occurs while the employee is working unless allowed by statute, court order or written authorization.
It is not within the authority of the employer to order their own remedy, regardless of what they may think they are owed.
Third, in order for an employer to recoup wages they must prove that they have suffered a loss as a result of the employee’s failure to give proper notice. The losses must be causally connected to the employee’s failure to give notice, not just the fact that they left.
If multiple employees terminate their employment at the same time—some giving proper notice and some not—the resulting costs cannot all be imputed onto those who failed to give notice. The employer must connect the loss claimed to the employee who the complaint is against.
Costs above usual operating costs may be awarded to the employer, such as the cost of expedited training, excessive advertising to fill the position quickly, business losses resulting from the lack of opportunity to properly train new staff, overtime pay accrued by existing staff filling in vacant shifts, or having to fill vacant shifts with more highly paid employees.
Regular business expenses, such as finding employees to cover open shifts, will not constitute losses owed from the former employee.
Whatever the cost claimed, the onus is on the employer to connect it to the employee’s failure to give notice.
For more information about employment law or human rights matters, please contact our team.
Resources
Check out this Guide to Labour Standards in Nova Scotia for further resources.
Also, check out the following links for examples of how section 73(1) has been applied by the Nova Scotia Labour Board (and Nova Scotia Labour Standards Tribunal):
Frank and Gino’s Grill and Pasta House
#WorkLawWednesday: every second Wednesday, PL answers general questions about employment and human rights law. This is not intended to be legal advice and should not be relied on as legal advice.