Resignations are on the rise post-pandemic, but an employee who expresses dissatisfaction doesn’t necessarily want to quit
There was a while during the pandemic when there were fewer people than normal quitting their jobs. That’s not surprising, given the economic downturn and uncertainty since March 2020. Many people who weren’t laid off or fired were happy to still be employed, and there was no telling where the next job might come from if they quit.
It looks like we’re finally starting to get out of the worst of the pandemic, with an upswing in the economy and the number of jobs that are out there. And that means more workers are feeling confident enough to resign from their employment and look for greener pastures if they’re not happy with where they are.
In fact, a recent report revealed that a significant proportion of Canadian workers plan to look for a new role in the next several months — something that should concern employers who want to keep their top talent.
However, employees who are dissatisfied with their jobs or their employers don’t always quit. They may express their dissatisfaction, but resignation is a last resort and they may not be quite there yet. It’s a good idea for employers to know the difference, or things could get more complicated.
Take one Ontario company with an employee who made errors that cost the company money and made customers unhappy. The employee was dealing with some personal problems, and when her boss talked to her about it, they got into a heated argument. The employee said she was going to quit, although she performed her regular closing duties at the end of the day. The next day, she provided a doctor’s note that said she would be taking a “stress-related medical leave,” during which she applied for employment insurance benefits.
The company assumed the employee had quit and issued a record of employment. The worker claimed the company terminated her employment, and the Ontario Relations Board noted that there were two factors in determining whether an employee had quit — a subjective intent to quit and actions indicating an intention to quit.
The board found that the fact the employee had finished her workday and provided a medical note demonstrated that she didn’t intend to quit. Her state of mind immediately following the argument was emotional and not clear enough to take her statement that she would quit at face value, said the board in awarding the employee termination pay: see M. Oomen’s Glass Ltd. v. Oomen, 2013 CarswellOnt 17083.
The above decision demonstrates that there needs to be a cooling off period after an employee says in the heat of the moment that they quit. It goes back to those factors of subjective intent and the employee’s actions. If an employee truly intends to resign, that heat-of-the-moment statement will be followed by further actions that reinforce it — such as providing a letter of resignation — and prove the intent. If the employee doesn’t mean it, it should become clear pretty quickly.
It boils down to the idea that if an employee blurts out that they’re going to quit, the employer legally has to give them a chance to cool down and retract their statement.
A similar situation enfolded at a Newfoundland and Labrador car dealership, when a manager had an argument with his boss. The manager turned in his keys and company cellphone, said “I’m done,” and left. The manager immediately saw his doctor, who diagnosed him with an acute stress condition. He tried several times to speak with management and finally presented documentation of his medical condition. However, management ripped up the documentation and told him his employment was over.
The province’s Court of Appeal ruled that the dealership terminated the manager’s employment and it awarded him 12 months’ pay in lieu of notice. The court raised the same issues as the Ontario Labour Relations Board — the employee’s state of mind and whether the circumstances demonstrated an intention to resign: see Avalon Ford Sales (1996) Limited v. Evans, NLCA 9.
But what happens if an employee quits after being fired? The B.C. Court of Appeal had to address that situation in a 2012 decision, in which a bus driver was terminated with five weeks’ working notice — the statutory minimum. The bus driver left work immediately and claimed wrongful dismissal. The court agreed that the bus driver was entitled to common law reasonable notice, but found that he repudiated the employment contract by not fulfilling his duties during the working notice period.
A lower court had found that the bus driver wasn’t entitled to termination pay because of his repudiation, but the appeal court found that the employer breached the employment contract first by not giving him common law notice, which didn’t take away the driver’s entitlement to damages: see Giza v. Sechelt School Bus Dervice Ltd., 2012 CarswellBC 22.
Some workers may be looking to see if the grass is greener elsewhere, but employers need to be sure of their intentions before shutting their own gate.
