Quit or Constructive Dismissal

If you work in the province of Ontario and the company falls under its jurisdiction, you are covered under the Employment Standards Act, 2000. This Act sets minimum standards that an employer must comply with. If the employer fails to do so, you have a right to file a claim with the Ministry of Labour on line and without cost. The Act protects you if you are trying to exercise your rights and if the employer takes steps to penalise you because of it, the officer assigned to investigate your claim is empowered to prevent the employer from taking such an action and if the employer persists, the officer may consider it a reprisal, which has serious consequences.
 
It is possible you may not agree with the officer’s decision, if so, you have a right to appeal the officer’s decision to Ontario Labour Relations Board. The Board is an independent body whose decisions are final and binding on both parties. It does not cost you money to request an appeal but you must do so within 30 days. Likewise, the employer too can file an appeal against the officer’s decision. However, it may be required to pay the Ministry any amount found to be owing to you by the company. This amount remains with the Ministry till the Board makes a decision. The Ministry then distributes the money to parties according to the Board’s decision.
 
When the employment relationship ends, it happens because the employee may decide to quit or is fired by the company. If the employee has been fired, he/she may be entitled to proper notice or pay in lieu of notice unless the exception to the entitlement applies. One need not accept the explanation provided by the employer. If the employee resigns, he/she may resign because of better position somewhere else, or may have been forced to quit because of the changes made in the contract of employment. If it is a voluntary resignation, he/she is not entitled to anything. However, if you resign because of the significant changes made by the employer without your consent, you may be entitled to pay in lieu of notice. 
 
Generally, quitting requires both action and intention. The question arises, did the employee quit or was forced to quit? In the heat of an argument, the employee may say, “I quit”. However, he may return to his workstation and resume work thus contradicting his statement. The employee’s behaviour shows that he/she did not intend to quit. It is only when the behaviour is supported by intent that the employer should conclude the employee has indeed quit. The sure sign would be when the employee says, “I quit”, gathers personal belongings, puts on a coat, leaves the employer’s premises and never returns.
 
If the employee does nothing to support an intention to quit after saying, “I quit”, the employer/employee relationship continues.
 
The difficulty arises when the employee returns the next morning saying “ I am sorry about yesterday”, goes to work station and tries to continue work but the employer responds, “No, I accepted your quitting yesterday and you are history!”
 
In such cases, one has to determine whether a statement by an employee informing the employer of an intention to quit or, in the absence of a statement, an action that implies intention to quit and follows by an action that his/her intention has been carried out.
 
Under the Act, the employer can terminate the employment of an employee for any reason, what is required is that the employee must be given proper notice or pay in lieu of notice. There is no such thing as wrongful dismissal. The entitlements under any type of termination, that is, whether it is wrongful or constructive, is the same. The entitlement depends on the length of service. The maximum notice required is eight weeks if the period of employment is more than eight years. For the first three months of employment, your employment can be terminated without notice.
If you happen to work for a company whose payroll is more than $2.5 million and you have worked for five or more years, you would also be entitled to severance pay in addition to notice or pay in lieu of notice. The severance pay is one week for each year of service, maximum of 26 weeks.
 
This information is only provided to guide you about your entitlements under the Employment Standards Act, 2000 and should not be considered as a legal advice.

This article is provided by Rajinder K. Batra, who is a retired Employment Standards Officer with the Ministry of Labour with 15 years experience in these matters.

If you have any questions regarding your employment, please contact the writer by e-mail at esaconsulting@hotmail..com

If you don’t have access to e-mail; you can fax your question at (905) 331-1805.       

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