Consider you have a disgruntled employee working for you and you suspect he wants to quit. However, you are also prepared to terminate him. One day, the employee verbally mentions to you that they might just get up and leave, so you tell them to go ahead.
Three weeks later, a lawyer’s letter lands on your desk, claiming you fired an employee and did not offer them any kind of termination package which they are entitled to.
You thought the employee quit, but the employee thinks you fired him. Now, you’re in a frustrating legal debacle over whether you fired him or he quit. As an employer, this will likely involve a significant amount of your time, your money, and may impact the Company’s reputation as well.
In a recent case, Sweeting vs. Mok, a nurse (the plaintiff) working at a small medical office was told by her employer (the defendant), “Go! Get out! I am so sick of coming into this office every day and looking at your ugly face.” Prior to this, there had been some friction between the employee and the employer. The employee (unsurprisingly) took these words to mean she was terminated.
The employer never said any words reminiscent of “you’re fired” and claimed that it never crossed his mind to terminate the employee’s employment. However, the employee’s lawyer argued that the employer’s actions and the words spoken by him, in the context of a small office, were enough to be regarded as a termination. To make matters worse for the employer, the employee had been working there for 22 years.
Even though the employer never told the employee they were fired and the employee left the workplace and never returned, the situation was ruled to be a termination. With the main argument being a lack of adequate notice given, the plaintiff was awarded 24 months’ pay.
“Accidentally” firing an employee can be quite costly for the employer. The above example is not the only time an employer has mistakenly let an employee go. There have been a number of similar cases in which an employee is awarded a settlement from their employer on account of termination notice because of a “resignation” gone wrong.
As an employer, it is important to get written notice from an employee who is tendering a resignation. It is also important to ensure that the employee intends on resigning and it is not simply a reactionary or flippant moment by the employee. While you could argue that an employee should never say “I quit” unless they mean it, the onus is on the employer to clarify whether or not the employee is actually quitting their job, or if they just need a day or two off to cool down.
According to the Employment Standards Act section 56 (1) (b), an employer is considered to have “terminated” the employment of an employee if “the employer constructively dismisses the employee and the employee resigns from his or her employment in response to that within a reasonable period.”
It is important for employers to understand that if an employee is rendering his or her resignation as a direct result of significant changes made by the employer or because the workplace environment is toxic, this may constitute grounds for Constructive Dismissal and the Company may find itself in hot water post-resignation (read more on this here)
So, while an employee may utter the words “I quit”, it is important to know for certain if an employee is resigning or not before you (as an employer) take the position that he or she no longer works for you.
Understanding the difference between a true “Resignation” and a potential “Constructive Dismissal” can prove to be quite challenging. If you find yourself in this type of situation as an employer or employee, you would be wise to get some legal advice before taking action. If you are unsure how to handle a termination, or unsure whether or not one of your employees has resigned, feel free to contact us for legal assistance and support.
Disclaimer: this post is intended for educational and non-commercial purposes only and is not intended to be a source of legal advice to any person in respect of any particular legal issue; it does not create a solicitor-client relationship with any readers. If you have a legal issue or possible legal issue, please contact us.