Notice required from the departing employee is for the benefit of the employer and, as such, can be waived by the employer. For example, if an employee is required to provide six months' notice of her departure the employer can waive that contractual requirement and tell the employee to leave immediately. Most employers feel it is not in the corporate interest to keep a "fired" or a "resigned" employee on the premises. It is assumed to be bad for morale and may jeopardize corporate security.

What has not been understood is that an employee who wishes to quit and wishes to resign his position as an employee must live up to the terms of his employment agreement and literally work for his employer for the full term of the notice that is required prior to resignation.

In the case of Blackberry Limited and Sebastien Marineau-Mes, the Ontario Superior Court of Justice ruled specifically on the obligation of the employee when contractually bound to provide six months' notice in advance of resignation.

Blackberry brought an application for a declaration that the employment contract is binding as between the employer and the employee, and accordingly the employee was bound to provide six months' written notice of his resignation and further he was required to remain and continue with his duties to the end of that six month term. It was the Marineau-Mes' intention to leave immediately. He planned to join Blackberry's competitor Apple.

The employee takes the position that Blackberry cannot enforce the six months' working notice and that the employee can commence work any time after he has notified his employer of his resignation. Blackberry argues that Marineau-Mes cannot commence employment with another employer prior to the expiration of the notice period. The employee says that the six month notice period in advance of resignation is equivalent to a non-compete covenant and is void as against public policy. In the alternative he argues that he is free to leave during the notice period and that Blackberry's remedy, if any, is an action for damages.

The court noted that such a clause providing the employer with notice prior to resignation is a common element of commercial arrangements. By providing such notice the company is protecting itself from the commercial disruption potentially caused by an early departure. Blackberry made it known to Merineau-Mes that his services were necessary over the notice period for an orderly transition out of the company.

The court dismisses the employee's arguments, enforces the terms of notice in the contract and forces the employee to continue to serve the interests of his employer during the six months prior to his date of resignation. An employer can waive a notice provision that an employee is committed to provide by contract. Yet if an employer insists on the employee's services during the notice period the employee cannot refuse.

This case provides a wake-up call to executive employees who continue to believe that the notice they are required to provide does not bind them to provide ongoing services as well. In this context, what is "good for the goose" is not "good for the gander". Although the employer may waive notice provided by the employee, the employee cannot deny the employer its right to demand full service from the employee during the notice period prior to resignation.

Note: This is a reprint of an article by Brian A. Grosman of Levitt & Grosman LLP.