Employee rights are a hot topic right now, especially in relation to quitting vs being fired. The global pandemic and the changing tides of the economy have created what many have termed the “Great Resignation”. Greater work flexibility and a more favourable labour market have combined to create a perfect storm for those looking to explore their options.
In an environment with plenty of available jobs and positions less anchored by geographic location, conditions are tending to favour the employee. But, if you are considering quitting your job, it’s important to know what your rights are as a worker in Canada and an employee of your company. Employment law is a complex area and many factors and the specifics of how you left your job can have a big impact on your rights and which benefits you can lay claim to once you’re unemployed.
Can you sue your employer after you quit?
In the eyes of the law, companies are treated just like individuals and liable under the exact same set of laws. Having said that, depending on what you’re suing your employer for can have a huge bearing on the likelihood of success. Additionally, the circumstances under which your employment ended will also have a large impact.
What if I’m in a union?
There is one major exception. If you’re in a union, it’s unlikely you’ll be able to take your employer to court, if it’s a civil matter anyway. Part of your union’s collective agreement will almost certainly include provisions to handle both kinds of disputes that will come up between employee and employer. Plus, it’s usually the union itself that will act as representation in disputes with the employer.
In short, there may be some cases where you can take your employer to court directly, but we’d recommend speaking with your union representative first and exhausting all options there before taking any more drastic steps.
What are some of the common things employees sue for?
As stated above, companies are treated much like individuals in the eyes of the law, so you can sue an employer for most anything you’d sue a private citizen for.
There are of course certain things that come up more often than others. Some of the more common points of contention in employment law relating to:
- Wrongful dismissal
- Unpaid wages
- Human right violations
- Traditional torts
- Extraordinary damages
Wrongful dismissal is likely the most common dispute to come up between employer and employee. When an employee is terminated without cause, they are owed severance. The exact amount of that severance should be laid out in the employment contract and takes into account the type of position held, how long the employee has worked at the company and other similar factors. Wrongful dismissal cases essentially hinge on the severance amount.
Extraordinary damages relate to damages incurred in the way an employee was terminated. Legally, employers need to act in good faith. If they don’t and an employee feels they’ve incurred damages including humiliation, embarrassment or damage to self-worth or self-esteem, they might be found to owe additional compensation.
Human rights violations related to infringements of basic human rights. This can include discrimination or harassment based on race, religion, skin colour, age, or sexual orientation in addition to a number of other protected identities.
For example, the Human Rights Code is the law in BC that sets out individual rights regarding discrimination. Employers have a duty to create a work environment free of discrimination based on employees’ personal traits, like those noted above.
Is it better to quit or be fired?
When it comes to collecting government unemployment benefits in Canada, it’s usually better to be fired for cause than to quit. Most of these types of benefits are designed to help those that are willing and able to work, but have lost employment.
Also, if you’re fired or laid off, the employer is required to pay severance. This is one of the reasons it’s so important to review and be familiar with your employment contract. This document not only lays out the terms of your employment but also what will take place in the event your position is terminated.
The employment contract that you signed when you started working for your employer will lay out how much severance you are owed and other factors that may impact your future employment opportunities. Measures like a non-compete clause for example may limit the type of work you can do, or the clients you can work for in the future. Worker beware!
If you voluntarily quit, you may be jeopardizing your ability to get a proper severance package from your employer, not to mention qualify for unemployment benefits.
Can my employer make me quit?
No, absolutely not.
From the employer’s perspective, there are clear advantages to having your employee quit rather than having to terminate them. As pointed out above, if an employee quits voluntarily, you don’t have to pay them severance.
But, an employer can’t compel you to quit. Even if an employer asks you to quit, you are under no obligation to quit or retire. If you aren’t a good fit for the company or your position isn’t required anymore, an employer always has the option to terminate or lay off the employee.
An employer may try to compel you to quit so you can “save face”, but as we’ve noted above, it’s almost always in your best interest to be terminated or laid off. You’ll be eligible to receive both severance and unemployment benefits.
An employer may also attempt to change the terms of your employment to compel you to quit. This is yet another example of why it’s important to be fully informed of the terms of your employment contract. An employer can’t unilaterally change the terms of the employment contract; they need your informed consent.
Can I still qualify for severance or unemployment benefits if I quit?
In some situations, you can.
If you were unjustly compelled to quit against your will, you may fall under something known as constructive dismissal. Constructive dismissal is seen much like termination in the eyes of the law, allowing the employee to take advantage of standard unemployment benefits and be eligible for severance payments from the employer.
It can be difficult to prove, but you’ll need to be able to demonstrate that you are not resigning of your own volition, but solely because of your employer’s actions. To help build a strong case, you’ll want to carefully document any correspondence that could incriminate your employer. Things like emails or memos.
You may also be able to make a constructive dismissal claim if can demonstrate a hostile work environment due to discrimination or harassment.
Can I be forced to retire?
The simple answer is no. In Canada, there is no mandatory retirement age and an employer has no legal basis to force you to retire once you reach a certain age.
Any attempt by an employer to compel you to retire could be interpreted as an infringement of your human rights. They may offer you gifts or incentives to encourage you to retire, but the choice is ultimately yours.
There are a few exceptions. Some jobs do have age limits based on an individual’s capacity to do a job in a safe manner, without causing undue danger to themselves or others. In these cases, the employer has to demonstrate the demands of the particular job have “bona fide” occupational requirements.
Sue my employer’s conclusion
To recap, in most cases you can sue your employer after you quit. Even for unionized employees that generally aren’t able to directly sue their employers, there are plenty of provisions laid out in the collective agreement to explore if you feel your rights have been infringed.
The truth is protecting employee rights is essential to keeping companies honest and from taking advantage of their employees. As a worker, you have the right to work in an environment free of harassment and discrimination. There are clear rules that lay out how an employer can treat their employees.
For the worker, it’s essential that they stay up to date on their employment rights as well as the terms laid out in their employment contract. This will ensure you know exactly what you are owed if disagreements arise as your employment ends.
The end of employment can be a very emotional time, especially if an employee has been with a company for some time. But, it’s important to maintain a cool head and not to do anything rash. In Canada, there are huge differences in the severance amounts and employment benefits you are eligible for should you choose to quit your position. Despite what they might tell you, an employer can’t compel you to quit.