WHAT CAN AN EMPLOYER DO when an employee provides inadequate notice of resignation?
One school of thought is to seek to eliminate or reduce the temporal shortfall by letting the employee take any outstanding vacation; but if such is not possible, simply pay any exit monies due to the employee.
The rationale for such action is the avoidance of further conflict and/or legal fees to pursue the debt.
One prospective shortcoming of this approach is that if the employee does not willingly choose to take any outstanding vacation, the employer is faced with the predicament that even though section 3(7) of the Holidays With Pay Act, Cap. 348 entitles an employer to “. . . determine the date on which the annual holiday shall commence . . .”, it also requires that the employer “. . .shall give to the employee not less than 14 days’ notice of such date”.
Another school of thought is to set off the temporal shortfall against the employee’s exit monies.
However, the possible challenge is that if wages constitute the exit monies, it is arguable under sections 8 and 9 of the Protection of Wages Act, Cap. 351 that inadequate notice does not fall into the permissable category of wage deductions: “. . . in respect of any fine or for bad or negligent work or for injury to the materials or other property of the employer . . . occasioned by the wilful misconduct of neglect of the worker”.
Additionally, if the cash equivalent for outstanding vacation constitutes the exit monies, it is arguable that the set off breaches the employee’s right to payment for outstanding vacation upon resignation (and dismissal) under section 6 of the Holidays With Pay Act.
Another school of thought is to pursue the temporal shortfall as debt in court. While the Canadian case of GasTOPS Ltd. v Forsyth 2012 ONCA 134 reveals that an employer may be awarded damages for an employee’s provision of inadequate notice, the employer should also consider the possible associated costs and that the employee might be a ‘man of straw’ against whom you merely have a ‘paper judgement’.
Another school of thought is to make an arrangement with the employee to pay for the shortfall.
The downside of such moral suasion is that the employee might renege on his/her promise.
If the employee has willingly chosen to provide inadequate notice, the possibility of non-adherence to his/her promise could arguably be significant.
Another school of thought is to create a contractual clause along the lines of “if you choose to voluntarily terminate your employment with the company, you are required to give ‘X’ notice in accordance with the Employment Rights Act, 2012-9.
If you do not give the required notice, the company reserves the right to deduct the appropriate period of salary from any payments due and owing to you”.
However, the employer might still find that the ‘payments due and owing’ might be inadequate to cover the shortfall in notice of resignation.
The aforementioned examples of uncertainty regarding the options available to employers who face certain practical challenges in their labour management activities, suggest that until regulations are passed by the legislature and/or relating rulings emanate from the Employment Rights Tribunal, your guess on the best approaches to be adopted might be as good as mine.
