I quit... hopefully!

December 1, 2005 6:16 PM

Can my boss NOT let me resign my position at his organization?

So I want to leave my current job, which I have held for under six months (it is craptastic to the extreme and things are looking up for getting a new one). The problem is, I signed a two-year contract which is wishy-washy about which party ("me" - the employed or "them" - the employer) is being held for that period.

Basically here's the gist:

- In June I signed what my boss called a "two-year contract". It's pretty straight forward in that it lists my starting salary, periods when salary can be renogiated, a pledge to stick to the personnel policies and a full job description.
- There is a section that says in the contract that the position can be terminated with due notice for any, or no, reason. There is no indication of whether the "terminator" has to be the employer or the employed or if it can be both.
- The personnel policies state that every new employee is on a probabationary period for six months (during which they are not protected by the benefits of the policies - such as time off, sick days, etc. - but which has been ignored during my short tenure there so far)
- In the personnel policies it also states that full-time employees can resign with one month's notice.

Is it right of me to assume that since everyone is on what they term an "employment contract" that it is essentially the same as "full time" (I work in an office position M-F 9-5)?

Also, does this mean I can resign my position at any time as long as I give a month's notice? Am I even required to give the notice since technically I am still in a probationary period until January 1st and am not considered to be fully under the personnel policies?

If it helps, oh askmefi legal beagles and beaglettes, I am in Toronto, Ontario.

Please assist me in not having nightmares where I am chained to a desk for as long as my boss still thinks I'm useful!

posted by elkerette to work & money (11 answers total)

Slavery/indentured servitude has been illegal in Canada since 1834. Accordingly, you can leave your job with no notice whatsoever.

On the flip side, leaving with zero notice may annoy your boss and you may not be able to get a job reference from there in the future.

It is customary to give two week's notice if at all possible. Managers do not even *want* one month's notice - that's too long, you're sitting at your desk knowing that you're just marking time...
posted by jellicle at 6:42 PM on December 1, 2005

IANAL, and I live in the U.S., but I do know that indentured servitude is just as illegal in Canada as it is in the States. Of course you can resign. It's very hard to enforce giving notice when resigning--it's more an expectation than a requirement. If you break the contract, the worst thing that can happen to you is that they sue you for it, which they're unlikely to do unless they feel like you're doing something materially harmful to their business.
posted by cerebus19 at 6:43 PM on December 1, 2005

Managers do not even *want* one month's notice - that's too long, you're sitting at your desk knowing that you're just marking time...

Not necessarily true. I worked for a woman once who, although the company handbook asked for two weeks, found it "unprofessional". Of course, she was of the mindset that you should work for her until she fired you, so....
posted by ThePinkSuperhero at 6:45 PM on December 1, 2005 [1 favorite]

If the part about terminating the contract does not specify who can terminate the contract, then either of you can terminate the contract. The "due notice" -- if not specified in the contract -- is that one month in the employee policies. As a rule of thumb, however, I would say the contract probably supercedes anything in the employee policies. Do not be too shocked if when you hand in your month's notice, you are allowed 5 minutes to collect your stuff and escorted out of the building. Particularly if this job is truly, in your words, craptastic.

My experience with two-year contracts is that you should not count on two years of work.
posted by ilsa at 6:55 PM on December 1, 2005

Read the Employment Standards Act . For your purposes, it should be the only "contract" you need to follow. Personal services cannot be enforced as a part of contract law. You are free to breach your contract, however you may face legal repercussions depending on how you do it. There is no legislated requirement in Ontario that an employee provide advance notice of resignation, however you have an implied obligation to provide reasonable notice of resignation. Also, your employer may sue you if you are vital to your company's operation, or your resignation will unduly harm the organization in terms of training a replacement. If you are legally a contractor there are different issues of law at work, but it doesn't sound like you are from what you described. I would have a consultation with an employment lawyer, they will be able to quickly explain your rights to you. Email me if you need a referral in downtown Toronto.
posted by loquax at 7:25 PM on December 1, 2005

To clarify my post above, no they can't force you to work for them, but they can sue you for not giving reasonable notice of your resignation, or for breaching your contract if you are a contractor. This shouldn't matter in any case if you're a replaceable office worker (sorry), but if you are a VP, or a highly skilled, irreplaceable individual, or someone in a position of fiduciary trust, it may be a problem.
posted by loquax at 7:35 PM on December 1, 2005

Well, I suppose they may think you have to stick around for two years, but I almost guarantee that your boss thinks he can fire you whenever he wants. If they won't let you resign, you probably don't want a reference they're likely to give. So... just don't go. You'll get "fired" and stop receiving pay, but whatever.

Only downside is if they're in some sort of association (formal or otherwise) where they can smear your reputation.

And yes, make sure you have your ducks in a row before you quit, resign, or get yourself fired. You have to count on being escorted out on the spot or watched closely for your remaining time.
posted by mumeishi at 7:43 PM on December 1, 2005

Atcually, loquax, I'm not sure that they could sue. I haven't read the Ontario Employment Standards Act, but in BC an employee is never required to do more than is required by the Act even with an employment contract. So if he were in BC, no notice would be required, even if the employment contract stated otherwise.
posted by solid-one-love at 8:00 PM on December 1, 2005

There's a common law obligation (not in the ESA) to provide reasonable notice of resignation in Ontario. I had the case somewhere, but I swear it exists. Now, like I said, I wouldn't worry about it unless you're the only guy who can operate the widget machine in North America, or the CEO, but it's something they may threaten, especially if they don't understand their own rights and responsibilities, as is so often the case among employers.
posted by loquax at 8:06 PM on December 1, 2005

Tree Savers International Ltd. v. Savoy, if you're curious - two employees left by giving only two weeks notice to start another company, they were held liable for $73,000 in damages. Admittedly, a very rare case, and I'm relatively sure it doesn't apply here, but still something to think about. Courts in Ontario have generally held that 2 weeks notice (written) is appropriate for the resignation notice for the vast majority of employees. Employers cannot withhold pay during this period, and they cannot force you to work beyond it.

Is it right of me to assume that since everyone is on what they term an "employment contract" that it is essentially the same as "full time" (I work in an office position M-F 9-5)?

You are probably right, but you are not safe to assume this. You are either on an indefinite contract (with the ensuing rights and responsibilities) or a "fixed-term" contract, with very different rights. There is a risk, if they state that you are a fixed term employee, or have been hired for a specific task, that they will sue for breach of contract, very different than suing for insufficient notice. This requires more legal expertise than you can likely get here, and I would really strongly advise you talk to a lawyer.
posted by loquax at 8:26 PM on December 1, 2005

One point: if your position is significant enough, and if it is a personal services contract, the employer may seek what the courts regard as equitable relief if you duck out before the two years is up. Although a common equitable remedy is "specific performance" - requiring that you act in compliance with the contract, in a situation in which money damages may not completely compensate the aggrieved party - that is not allowed in personal services situations. So the next best is an order from the court that you not be permitted to provide those services to anyone else for the duration of the two-year period.

No matter how bad the situation is, if you are going to leave, why not approach the boss and try to work out a mutually agreeable exit strategy?
posted by yclipse at 7:57 PM on December 4, 2005