Distinction Between Quit or Fired

What is the Employment Standards Act?
 
The Employment Standards Act is the law that contains basic rules about employing people and working. Both employees and employers have rights and
responsibilities under the Act.
 
Does the Act cover all employees in Ontario?
 
Most employees are covered by the provincial legislation. However, employees working in industries that fall under Federal jurisdiction, such as, Post office, Banks, Railways, Radio stations, Airlines, Television stations etc. are not covered. 
 
If you are member of the trade union and your contract of employment is governed by the collective agreement, you may not be covered by the Act.
 
If you are currently employed with the company, you may be able to file a claim with a request that your name not be disclosed. The Act protects you when you are exercising your rights under it.
 
Sometime it is necessary to distinguish whether an employee resigned on its own or was forced to quit because the employer changed his or her contract of employment without the employee’s consent.
 
If the employee was forced to quit, the “quit” is essentially considered a termination by the employer even though the employee may have said “I quit”. “Quitting” requires both action and intention.
 
The question arises, did the employee quit or was the employee forced to quit? Jumped or pushed?
 
In certain situations, the employee behaviour is not consistent with “quitting”. In an argument, the employee may say, “I quit” in the heat of an argument. It is also easy to see this as the end of the matter and consider the employee as having “quit”. But the employee’s statement, “I quit”, may contradict his or intent-shown by returning to work station and resuming work. The employee’s behaviour shows that he or she did not intend to quit.
 
If the employee does nothing to support an intention to quit after saying, “I quit”, the employer/employee relationship is continued.
 
The difficulty arises when the employee leaves but 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”.
 
Under these circumstances, the question is what is reasonable and what is common conduct or behaviour in that workplace?
 
If the claim is filed with the Ministry of Labour for termination and severance pay, the investigating officer may interview witnesses, to talk to everyone possible. Certain behaviour indicates a resignation. For example:
 
.           Employee states intention to resign and then requests his or her Record of
            Employment for Employment Insurance benefits.
.           Employee fails to return to work after giving notice of intention to quit, coupled
            with cleaning out desk and leaving keys behind.
 
Generally speaking, there are two relevant elements to quitting employment. They are:
 
.           a statement by the employee informing the employer of an intention to quit or, in
            the absence of statement, an action that implies an intention to quit; and
.           an action by the employee indicating that his or her intention has been carried out.
 
By contrast, there is no question whether a quit occurred in a constructive dismissal. Knowing that the employee quit, the question to determine is, whether the “quit” was forced by the employer.           
 
If you or the employer disagrees with the investigating officer’s decision, both parties have a right to appeal to Ontario Labour Relations Board within 30 days of the officer’s decision. The Board appoints a referee to hear the appeal. It does not cost the employee to request an appeal but the employer may be required to deposit monies in trust with the Ministry of Labour if it is found to be owing. The referee decision is final and binding on both parties.    
 
In the past, the Ministry was very aggressive in defending the rights of an employee and would send a legal counsel to represent the employee at the Board’s hearing to deal with the matter. It rarely does so now. Obviously, the employer has advantage over the employee in these circumstances. The question arises, should the employee also engage the services of a professional? It is my view, employee’s may not engage such services at the officer’s level hearing but may do so at the referee level hearing, particularly, if the issues are complex.
 
It is important that if a hearing has been scheduled, the employee must attend such a hearing to present evidence to support its position or to contest the employer’s evidence, otherwise, the officer or the referee may rely on the evidence of the employer to render a decision.   
 
This information is provided for guidance only 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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