Plenty has been written about legal obligations and mistaken
beliefs when it comes to employees being fired. But, while it is
seldom discussed, there is almost as much law affecting an
employee's decision to quit, whether it's because they read
the writing on the wall or just got a better offer.
Employees who resign with the proverbial two weeks notice can be
sued. Just as employers must either provide employees with advance
notice of dismissal or pay severance, employees have a reciprocal
obligation. They must give employers sufficient notice of their
departure date to permit them to recruit, train and put in place a
comparably skilled replacement. If they do not, they can be sued
for whatever damages the employer suffers i.e. lost productivity,
sales and the costs of recruitment and replacement. Although most
employers, whether oblivious to their legal rights or indifferent,
don't bother suing, some do. Such cases most often arise when
an employee resigns without notice and sues for constructive
dismissal. My advice in these circumstances, is to respond with a
strong wrongful resignation counterclaim.
Quitting before the guillotine descends
Some employees resign to avoid the ignominy of an apparently
inevitable discharge. Doing this will disqualify the employee from
Employment Insurance and even if their assumption is correct, they
further deprive themselves of their severance entitlement. Because
less than 1% of dismissals are for cause, severance would be owed
to them if only they had waited. As for that feared stigma, most
Canadian employees by now have been or will be, reorganized,
downsized or otherwise let go at some point in their career.
Resiling from resignation
Sometimes, employees resign in the heat of the moment. The court
does not hold them to their word, permitting them to return to the
workplace. It will not avail the employer to greet such
resignations with a sigh of relief and an immediate written
acceptance. Employees have a couple of days cooling off in which to
withdraw their resignation. If the employer, insisting the employee
has resigned, refuses to let them return to work, the
"resignation" converts into a wrongful dismissal.
Resigning as result of changes to terms of employment
As I have often discussed, if an employee is faced with a
deleterious fundamental breach to their terms of employment, which
either reduces their remuneration or leaves them embarrassed, they
have the right to resign and sue, just as if they had been fired.
As noted above, if they are wrong, they risk an action for wrongful
Resign or be fired
If an employee resigns in response to that Hobbesian choice,
they have not legally resigned at all. After all, they did not
voluntarily leave the workplace. They have been wrongfully
dismissed and have the accordant rights.
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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