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Posts tagged: Resignation

Are You Still Entitled to Employment Insurance If You Quit?

By , October 17, 2018 11:24 am

Under the Employment Insurance Act, both employers and employees are required to contribute to Employment Insurance (“EI”) premiums. The objective of  EI benefits is to provide temporary income support to unemployed workers while they search for new employment. It is well recognized that terminated employees are entitled to receive EI benefits. But what if an employee resigns?Are they still the entitled to receive EI?

In general the answer is no. If an employee voluntarily leaves their employment this would disqualify them from receiving EI. “Voluntarily leaving” means that the employee (not the employer) took the initiative  to end the employment. However, this general rule is subject to a caveat. If an employee resigns, they may still be entitled to receive EI benefits if they had ‘just cause” to quit. In other words, they could still be entitled to receive EI if they can prove that quitting their job was the only reasonable alternative.  An employee is expected to have tried other ways to resolve the workplace issue before quitting.

However, there are some circumstances outlined by Service Canada that constitute a situation where resigning may be the only reasonable alternative. This includes situations of sexual harassment, work that endangers health or safety, the need to provide care to an immediate family member or negative changes to your salary/wages.  A few months ago I represented a client who resigned from his employment after his employer threw a saw at his workstation. Despite the fact that the employee resigned following the incident, we maintained that he was still owed EI benefits. The Social Security Tribunal agreed and determined that the employee had no reasonable alternative than to resign due to the threat to his health and safety.

Lessons to Employees

  • If you quit you may not be entitled to receive regular EI benefits however , depending on your circumstances, you could still qualify to receive maternity, parental, sickness or compassionate care benefits.
  • Before quitting your employment, you should consult a lawyer to determine your legal rights and entitlements.

If you have questions about your rights at works regarding harassment and violence protections and would like more information, you can contact an employment lawyer at MacLeod Law Firm. You can reach us at [email protected] or 647-204-8107.
The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Resignation vs. Termination: The $64,000 (or more) Question

By , February 10, 2017 2:44 pm

Employers prefer it when an employee resigns because the employee is not entitled to any termination pay. To be valid, a resignation must be voluntary, clear and unequivocal; otherwise a so-called resignation could in fact be a termination, in which case the employee is entitled to termination pay. A contested resignation often takes place when an employee leaves the workplace after an emotional outburst. A recent decision from British Columbia considered this kind of situation.

Bishop v Rexel Canada Electrical Inc.

Mr. Bishop was a buyer in Rexel’s purchasing department. In December 2015, his supervisor asked him to take on an additional task of releasing web orders to assist another buyer who was overwhelmed. Mr. Bishop began feeling significantly overburdened by the addition of this task.

On January 4, 2016, Mr. Bishop’s supervisor requested that he continue to perform the task of releasing web orders. Mr. Bishop sent a hasty email to his supervisor saying he was “up to [his] ass in orders” and that if the web orders were being “dumped” on him again, he would not be returning.

Mr. Bishop and his supervisor then had a phone conversation, the contents of which were debated between the parties. While Mr. Bishop said he did not resign during this call, his supervisor testified he confirmed his resignation. Mr. Bishop was then escorted from the office and asked to return his keys.

In finding that Mr. Bishop had not resigned, the judge pointed to the following three factors:

  • Bishop was clearly upset on January 4, 2016, Ms. King was aware of his emotional state and should not have taken his word as definitive without further inquiry once his emotions had settled.
  • Prior to the alleged resignation, his supervisor had nominated Mr. Bishop for termination/layoff in January 2016. His resignation must be viewed within this context.
  • Rexel was in a rush to confirm Mr. Bishop’s resignation.

Given that Mr. Bishop did not resign, the court found that Mr. Bishop was in fact terminated after he was asked to return his keys.

Lessons to be Learned

Resignations are not necessarily black-and-white. A judge will look at surrounding circumstances to determine whether the resignation was voluntary, clear and unequivocal. If an employer is insisting you resigned, and you disagree, you should consider speaking with an employment lawyer about your situation. You can contact us at [email protected] or 647-204-8107.

Retracting a Resignation: Can You Go Back to Work After You Quit?

By , September 19, 2016 3:05 pm

Quitting a job is often a difficult decision. But what happens when you want to return to the job after you resign? There have been situations where employees have been able to retract, take back, their resignation. Here are some factors that the Courts will look at to determine if an employee may retract a resignation.

The resignation must be accepted by the employer

An employee’s resignation has to be accepted by the employer before it takes effect. If it has not been accepted by the employer, an employee may be able to retract it and return to their job.

If the employer has not accepted the resignation, but has taken steps to rely on it, the employee may not be able to retract it. For example, if the employer hires a replacement for the resigned employee, the employee may not be able to return their job. It is important to act quickly if you are thinking about retracting a resignation.

A resignation must be voluntary

Many employees often quit in the heat of the moment, or due to frustration because of events happening, in or outside of the workplace. The Courts require employers to be sure that the employee’s resignation was voluntary. If the employee quit in an emotional outburst, the Court may find that the employee did not voluntarily resign.

If an employer does not accept your retraction, you may have a claim for wrongful dismissal

Most employees who resign are not entitled to termination pay. If an employer refuses to take back an employee who properly retracted their resignation, the Courts will treat the situation as if the employer terminated the employee without cause. In these situations, the employee can sue for wrongful dismissal.

If you would like to speak with an experienced lawyer at MacLeod Law Firm about this issue, please contact us at [email protected] or 647-204-8107.

“The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

How to Get Paid After Resignation

By , August 12, 2015 3:40 pm

Recently, The Globe and Mail reported that the former President of UBC, Arvind Gupta, who stepped down from his position last week, will receive his full annual salary while on leave next school year.

Mr. Gupta’s resignation and the payment he will receive reveals how some employees may be entitled to compensation after resigning their employment. There are two primary ways that this could occur: if the employee has negotiated for the payment, or if the employee proves he was constructively dismissed.

 

Employment Contracts

It is common, today, for employers to require employees to sign an employment contract prior to commencing a position.  Typically, this contract will limit the employee’s rights, including at the time of termination.  For more information regarding termination clauses, see our other blogs.

Employment contracts can also be an opportunity for employees to negotiate favourable terms for their employment.  It is possible that Mr. Gupta negotiated the terms of his compensation including the payment should he resign after one year of his term as President.

 

Constructive Dismissal

Neither UBC nor Mr. Gupta have reported why he resigned from his position. However, if an employee resigns due to a significant change in employment by the employer, or due to a poisoned work environment, the employee may be entitled to recover money for constructive dismissal after resignation.

A constructive dismissal occurs when an employer makes a unilateral and fundamental change to a term or condition of an employment contract without providing reasonable notice of that change to the employee.

Such action is an abandonment of the employment contract by the employer.  That means that an employee can treat the contract as wrongfully terminated and resign. This then gives rise to an obligation on the employer’s part to provide damages in lieu of reasonable notice.

Examples of Constructive Dismissal

Not every change in job responsibilities will be a constructive dismissal. However, a combination of reduced pay and a change in duties likely will. If the new position has less prestige or if an employee is moved from a supervisory to non-supervisory position constructive dismissal may have occurred. Reduction in compensation such as the elimination of a negotiated bonus or commission arrangement has also been considered constructive dismissal where the bonus/commission was a significant part of the employee’s compensation. 

The courts have considered significant changes in hours or shifts to be constructive dismissal. For example, where there was an explicit agreement to have certain days off, and the employer schedules shifts contrary to that agreement.

A temporary layoff is generally considered a constructive dismissal.

If an employer creates, or allows to develop, a working environment that is hostile or embarrassing for an employee, it may be considered that the employer no longer intends to abide by the employment contract. This includes verbal abuse or unfounded accusations of an employee and failing to treat the employee with civility, decency, respect, and dignity. See here and here for further reading on harassment and violence at work.

In a recent Supreme Court of Canada decision, Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10, the court concluded that an unpaid administrative suspension may be a significant change to employment and therefore constructive dismissal.

Whatever the change, it must be substantial. The courts will look at the specific facts of the employment position in order to determine whether the employee has been constructively dismissed. It is up to the employee to prove that the change was so significant that it amounted to a dismissal.

 

If you would like to speak with an employment lawyer who has knowledge about this area of law, please contact us at [email protected] or 647-633-9894.

 

“The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

Leaving Your Job: The Dos and Don’ts of Resigning.

By , March 6, 2014 9:33 am

Are you considering resigning?  Do you know how much notice to give your employer? Do you know that your employer could sue you for failing to give enough notice?

Reasonable Notice of Resignation

Most employees believe that there is a legal requirement to give an employer two weeks’ notice when ending the employment relationship. However, the Employment Standards Act does not require employees in Ontario to provide notice of resignation to their employers, in nearly all situations.

Employees should keep in mind that the common law does require employees to give “reasonable notice of resignation.”

The courts determine what a reasonable amount of time would be, by considering several questions:

  • Does the employee have an employment contract which sets out how much notice the employee should give when resigning?
  • Is the employee’s position specialized?
  • Would the employer be left in a vulnerable position if the employee did not provide enough notice?
  • How long would it reasonably take the employer to hire a suitable replacement?

Check your employment contract to see of you have agreed to provide a specific amount of notice when resigning.

Wrongful Resignation

An employer can sue an employee for “wrongful resignation” if the employer sustains damages (costs and expenses) because the employee did not give enough notice of termination.  It is unusual for employer to sue an employee for wrongful resignation. The damages that could be awarded to an employer for wrongful resignation by an employee depend on the actual costs that the employer sustains, which can vary from case to case.

Typically, a wrongful resignation claim is made along with a claim that the employee breached a non-solicitation or non-competition clause. For more information on these clauses obligations, see our other blogs.

If you are thinking about resigning and would like to speak with a lawyer about your obligations to give reasonable notice, or your non-compete and non-solicitation obligations, contact us at [email protected] or 647-633-9894.

 

 

 

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