Wrongful Resignation: What is it and when does it happen?Team
At any time, an employment contract can be terminated by either the employee or the employer. We are all familiar with the possible liabilities of an employer for wrongful termination of employment. Less attention is paid to the case of an employee being alleged to have wrongfully resigned (sometimes called “wrongful quit” cases).
If an employee chooses to leave their job position, they can do so at any time, provided they let their employer know.
Most people tend to be aware that it is common courtesy to give your employer two weeks’ notice if you are leaving a position, but people may not be aware that not providing your employer with proper notice can result in legal action being taken against you for improper or wrongful resignation.
As the world recovers from the COVID-19 pandemic, many employees are leaving their jobs, searching for new positions, or finding ways to get back to the way things were before the pandemic. As well, more employees are facing the reality of health problems after contracting COVID-19 and managing their lives after that.
Employees choose to leave their positions, they should be aware of how to avoid the issue of wrongful resignation.
Best Practices for Resigning
When resigning from a position, Canadian common law states that you need to give “reasonable notice” to let your employer know. The common law doesn’t expand on what reasonable notice should mean in each scenario, but the general expected amount of time is two weeks.
However, what is ‘reasonable’ may vary between industries. For example, someone working in an office might provide two weeks, but someone who is working retail may work in an environment where it is expected that reasonable notice may mean until the end of their remaining scheduled shifts, however long that is.
Employees should make sure to read over their employment contracts to see if there is a clause about resignation that requires that they give more notice than the average two weeks. Some employment contracts will have a set procedure for resigning from a position that employees should be sure to follow so they do not find themselves in trouble for breaching their contract.
As well, it is generally a good idea to provide your written notice to your employer when you resign. If you only tell your employer verbally, they may use the opportunity to argue when the moment you chose to resign was. If you submit your resignation in writing, you will have a verifiable date to point to, if the issue arises.
While it doesn’t happen often, wrongful resignation is still something that employees should be wary of if they are leaving a position. If an employee does not provide their employer with reasonable notice, and if the employer suffers financially because of that, they can choose to sue their former employee for wrongful resignation.
A situation where this might happen might be if an employee with a job that requires a lot of training and expertise decided to quit without giving proper resignation. Since their employer would not be able to find someone with the same expertise or train someone new to take on their position very quickly, they might have to stop their services for a time until that role is filled. Due to the financial loss, that employer could choose to sue their former employee.
However, the main reason wrongful quit cases are much less common than wrongful dismissal cases is that it is harder for an employer to prove damages because they are expected to have an easier time finding a replacement employee than would a dismissed employee has to find a new job.
Wrongful Resignation and Constructive Dismissal
If an employee chooses to leave their position due to a toxic work environment, or because their employer unilaterally chose to change a fundamental part of their job, that employee might claim that they were constructively dismissed.
An employee can start legal action against their employer to receive severance after being constructively dismissed. Alternatively, if an employer has started legal action against that employee for wrongful resignation, the employee might be able to claim constructive dismissal as a defense.
How Should You Be Resigning?
If you plan to resign from a position, it is a good idea to follow the usual steps for doing so, including providing written notice to your employer. Make sure you have read your employment contract first, if you have one, to see if there are any extra requirements set out there.
If you have a position that is particularly difficult to fill, it may be beneficial to speak with your employer about what reason should be, in your situation. If you have concerns about how your notice of resignation may be received, make sure to speak to an employment lawyer.
While it isn’t very common that an employer will sue their former employee for wrongful resignation, it is still a possibility that employees should be aware of if they plan to leave their job.
If you do plan to quit your job, make sure that you have carefully considered what you need to do, and that you have covered all your bases in terms of reasonable notice. If you have questions before submitting your resignation, or if you would like to pursue a claim of constructive dismissal, make sure to reach out to a qualified workplace lawyer at Achkar Law.
If you are an employee or an employer with questions about wrongful resignations, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at 1 (800) 771-7882 or email us at [email protected], and we will be happy to assist.
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