In a recent CBC article, a survey found that most Canadians are ready to quit their jobs. In this blog, I address critical employment laws you should know regarding quitting and being dismissed
Quitting - How Much Notice of Resignation Should I Give?
When an employee resigns, a transition period could help both the employee and employer. The employee can tie up loose ends and make their farewells, the employer can ensure the departing employee’s workload can be handled appropriately.
How much notice an employee is required to give their employer for their resignation first depends on the employment contract. If the employment contract does not set out the required amount of notice, how much notice depends on common law factors including an employee’s position, length of service and the time it would reasonably take the employer to replace the employee or otherwise take steps to adjust to the loss.
It is usually senior employees, including management with fiduciary duties that warrant a longer notice of period. For example, one senior salesperson was required to give two months’ notice to their employer due to him playing a significant part of the employer’s business. The employee was ordered to pay over $35,000 representing two months’ loss of sales.
It will be rare for a low-mid level employee to be required to give notice of resignation under the law. Many employment contracts usually provide that employees must give two weeks notice of their resignation. What happens if they do not? Legally, the employees have breached their contract and the employer has legal claim against them for “wrongful resignation.” Realistically, most employers will not pursue a legal action for the failure of the employee to provide two weeks. It’s just not worth the effort, time, and expense. Therefore, employees should not be too worried (legally) about giving the exact amount of notice under the contract. However, an employee shouldn’t burn bridges if they can avoid it.
No matter what, any accrued vacation that an employee has not taken will be paid out upon any type of resignation.
Termination impending, should I quit?
No.
Many employees can sense when their time is coming to an end at their job. It might be poor performance, their manager giving them a hard time, being written up for unfair reasons, or perhaps the employee has committed misconduct.
No matter what the reason, quitting the job means the employee is not entitled to two big things: severance and employment insurance (EI) benefits.
While these may not be a concern for those who are transitioning to their next job immediately, they can matter greatly for those who will be out of work for some time.
If you find yourself being treated unfairly, scrutinized intensely, harassed, and feeling like the employer wants you to quit, you may have a potential constructive dismissal claim. Constructive dismissal occurs when an employee can quit but still claim a severance package because the employer has done something that breaches the employment agreement. This can occur when there is a demotion, reduced pay, reduced hours, or a toxic work environment.
Quite a few employers want to terminate an employee but do not want to give them any severance pay. These employers know that a clear change in duties are not permissible, so they may try to pressure an employee to quit by writing them up for vague reasons or putting on pressure in some other ways. Employees in these situations may want to “tough” it out, outlast the employer’s tactics, and wait for the termination. There are also ways an employee can help the process along to get themselves fired.
As long as the employee is terminated “without cause,” they are entitled to severance and EI. (Click here to determine how to calculate severance pay.) Even if the employer states that the termination was for “cause” or “just cause,” this is usually very difficult to prove. Employees terminated for cause should always consult an employment lawyer.
Conclusion - Quit or Be Fired?
From a strictly legal and money view, being dismissed without cause is always better than quitting, especially if the employee does not have another job lined up. This is because they can collect a severance package and EI.
However, other factors are always important, such as one’s health and not being able to tolerate a toxic work environment. Pride is always a factor.
If you are being forced to quit, you should contact Jason Wong. Jason is a Toronto employment lawyer who helps employees understand their rights and interests at work. You can contact him for a free consultation at 647-242-5961 or jason@wongemploymentlaw.com.