In a recent case involving Blackberry and one of its executive employees a court made a declaration that a relatively long notice period by an employee (six months) is valid and enforceable. Most often employment agreements only require notice periods in the range of two weeks to a month.
In the case the employee had, in an employment contract, agreed to provide six months’ notice of his resignation. The employee received an offer from Apple and attempted to stop working for Blackberry and join Apple before the six-month notice period had expired.
The court upheld the six-month notice provision as valid and enforceable.
The case is remarkable in that employers rarely attempt to enforce notice provisions but rather sue for damages for breach instead. Typically damages are difficult to recover unless the employer can point to a loss of revenue or extra costs incurred by the early departure of the employee.
It is important to note that the court did not in the case order an injunction requiring the employee to work through the notice period. It is generally accepted that the courts cannot compel an employee to perform services for an employer.
The important lesson from the case is that the courts will consider lengthy notice periods to be valid and enforceable for executive and senior employees. We may see employers using longer notice periods to supplement or complement restrictive covenants in employment agreements. Restrictive covenants are contractual provisions which purport to prevent an employee from working in any competitive role with his former employer. Requiring an employee to give lengthier notice may be another way of restricting an employee’s ability to compete with his or her former employer.
Alf Kempf is the Chair of Pushor Mitchell’s Employment Law Group. He can be reached at 250-869-1215 or [email protected]
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