Recent case law in Ontario indicates that it is just not enough
for an employee to express complete dissatisfaction, or even
declare an intention to seek out other employment, or that he or
she will resign if certain circumstances eventuate. There
must be more than an expressed intention to quit in order to amount
to a resignation.
Such an intention cannot be based on an employee's state of
frustration or depression. The statement "I quit"
may be made as a result of an emotional reaction to a critical
situation or circumstance. The employee must, by clear words
or actions, demonstrate his or her intent to resign unconditionally
and not merely as an ultimatum, so that the threat "if you
don't give me a raise, I'm out of here", in itself, is
not a resignation.
That issue came up recently in a Nova Scotia case where the
employee did say "I quit" and stormed out of the
office. If a court finds that the actions of the employee did
not amount to a resignation, and if the employer acts as if it had
received a resignation, the employer may end up paying damages to
the employee for wrongful dismissal.
In the Nova Scotia case Kerr v. Valley Volkswagen, the
employee worked for the Volkswagen dealership for over seven years
and during that time did not receive a raise. One day the
employee went to the manager's office and blurted out "I
want $100.00 per week raise or I'm gone." He went on
to say that he had another job opportunity that would pay him more
money and that it was his intention to quit if he did not receive
$100.00 per week raise. Even after the threat was made, the
employee continued to work for nearly three weeks until the
employer informed him that he had accepted the employee's offer
to resign, since he had no intention of giving him a raise.
The terminated employee sued for wrongful dismissal and argued that
he did not quit but had been terminated without notice or
The court referenced a decision of the Supreme Court of Canada
where that court had commented on the power imbalance between
employers and employees. The court noted that employers have
a duty of fair dealing with employees, particularly at the time of
the termination of an employment contract. After referring to
a number of cases the court stated that the law on resignation is
clear and that the statement by the employee of the Volkswagen
dealership was not clear and unequivocal, and accordingly did not
amount to a resignation. Since the words and actions did not
indicate an immediate and firm intention to quit, the employee has
not quit. Of course, when the words or actions of the
employee demonstrate a clear intent to resign, unconditionally, the
courts will find that the employee has indeed quit, and is not
entitled to change his or her mind in order to seek damages for
wrongful dismissal from a former employer.
It is not always easy for an employer to make the determination
whether, in law, the employee has indeed resigned. If an
employer accepts an employee's expression that he is quitting,
or has quit, and later a court rules that there was no clear
intention to quit, the employer will inevitably pay damages for
wrongful dismissal. Even the simple statement, "I
quit", requires legal analysis of the context in which it was
spoken in order to determine the legal consequences.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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