Can You Really Get Sued for Quitting Your Job? Here’s What the Law Says

Can You Really Get Sued for Quitting Your Job? Here’s What the Law Says

Leaving a job can be emotional. For employees, it may mean a fresh start or simply the relief of moving on. For employers, it can cause disruption: scrambling to cover workloads, reassuring clients, and managing change. With so much at stake, we sometimes get asked: can an employee be sued for quitting?

The short answer is yes, it can happen, but only in extraordinary situations. Lawsuits against employees who have resigned are rare. Most lawsuits against resigning employees involve other issues like failure to give notice of resignation, use of confidential information, or solicitation of clients or employees. In most lawsuits against departing employees, the employer has experienced concrete, measurable, financial losses from the employee’s sudden exit.

Do employees have to give notice?

Yes, some advance notice of resignation is legally required. If you are wondering about notice in your specific situation, the first place to check is the employment contract.  Many contracts specify the amount of notice that needs to be provided for resignations.

If there is nothing in the contract, in British Columbia, there is no statutory requirement under the Employment Standards Act for employees to give notice of resignation. That said, employees still have a common law duty to provide “reasonable notice” when leaving a job.

There’s no set number of days for “reasonable notice”, but two weeks has become the cultural norm. For some roles, that’s more than enough. For senior or specialized positions, or fiduciary employees (more on this below) courts may expect more time.

Most claims come up when someone quits without any warning, takes a new role with a competitor, and pulls clients or colleagues along with them. In those cases, an employer might be able to prove they’ve suffered financial harm. A good example of this is in a case that went all the way to the Supreme Court of Canada in 2008: RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc.

For employees, providing reasonable notice under your contract or common law reduces that risk and helps preserve professional relationships. For employers, reasonable notice buys time to transition and plan for the gap.

What about confidential information?

Former employees using confidential information after leaving the organization is a recurring issue that leads to legal battles. Confidential information is basically anything the employee would not have known without working at the organization, this includes trade secrets or client information.

Even if there is no written confidentiality agreement, courts recognize a continuing duty not to misuse information learned during employment. Employees should walk away with their skills and experience, and not with the employer’s records, customer information or strategies. Employers, for their part, should make sure those expectations are clearly set out in employment contracts and workplace policies, and reinforced before and after a resignation.

In short, employees should leave with their coffee mug, family pictures, and the skills they gained, but not with documents or records that belong to the employer. For employers, that means making sure confidentiality obligations are communicated clearly, ideally in writing, and that former employees understand these expectations.

Competing after quitting

Many employees worry they won’t be able to work for a competitor or start their own business after leaving their job. The answer depends on what’s written in the employment contract and the role of the employee.

Non-compete (or non-competition) clauses are sometimes included in contracts, but courts often strike them down if they go beyond what is needed to protect the employers’ legitimate proprietary interests. Non-solicitation clauses, which stop former employees from bringing clients or colleagues over to a new employer, are more likely to hold up if they are reasonable – meaning they’re limited in time, geography, and scope. This is a pretty technical area of the law, and we strongly suggest consulting with an employment lawyer if you are an employee or employer wondering if this kind of clause in a contract could apply to post-employment competition.

If an employee held a position of particular trust and authority, they could be a fiduciary employee. These employees are expected to act with loyalty and good faith even after they resign.  That could include not soliciting clients or employees for a period of time after employment.

Vacation or wage overpayments

Sometimes the dispute between an employer and employee who has quit isn’t about reasonable notice or competition but about money. This can come up when vacation has been taken in advance of accruing it, or if payroll errors leave questions about repayment.

In British Columbia, employers cannot deduct money from an employee’s pay without written consent. An employer could sue to recover an overpayment, but it may not be worthwhile to file a lawsuit over a small sum. Employees who have money withheld without their written consent can file a complaint with the Employment Standards Branch. The practical solution for both sides is to resolve these issues before the last day of work.

 

Bottom Line

So, can you really get sued for quitting? Technically yes, in specific circumstances, but in practice it is rare. Employers generally only pursue legal action if the employee not given notice or otherwise breached their employment contract and the employer has suffered real and significant harm.

For employees, providing reasonable notice and being mindful of confidentiality, non-compete, and/or non-solicitation clauses can avoid trouble in the long run. For employers, it’s far easier to set out clear expectations to a departing employee and address any outstanding issues before they walk out than to deal with it later down the road.

When handled professionally and effectively, resignations can be a clean start of a new chapter rather than the beginning of a painful legal dispute.

 

This blog is not legal advice and only provides general information. Every situation must be considered on its own facts.

Need legal advice? Contact us [email protected] or 604-535-7063. Our team of employment lawyers in BC and Alberta are ready to answer your questions.

Work Refusals and Covid-19: Risky Business Indeed

Work Refusals and Covid-19: Risky Business Indeed

Covid-19 has put workers and employers in a difficult position.  Many have lost their jobs, and others find themselves trying to work remotely for the first time, surrounded by their school-aged children. But what about those still going in to work?  Some workers are feeling afraid and uncomfortable, watching those around them be told to stay home, while they go out into a minefield.

What happens if a worker refuses to go to work?  For this blog, we will assume that the employer has done everything right in terms of complying with WorkSafe BC and Public Health Authority recommendations.  But the worker still feels uncomfortable.  What happens if that worker refuses to work or walks away from their job?

 

Refusal to work can be a quit

Repeating our assumption that the employer is complying with all government recommendations and requirements, fear or discomfort alone does not give the worker the right to refuse to come to work. If an employer is willing to continue employment, but the worker refuses to work out of fear or discomfort, then they may be in effect quitting their job.  This would mean employment and all benefits come to an end, with no termination or severance pay.

There would be exceptions to this if the worker falls within the new protected leaves under the BC Employment Standards Act.  For example, if they are uncomfortable coming to work, AND they have minor school-aged kids at home that need care.  In this case the requirement to care for children would be the basis for an unpaid leave from work, and the worker may be eligible for CERB.

 

CERB can be lost due to work refusal

Today, applications for CERB opened, to the great relief of many.  Under the current legilsation, Canada Emergency Response Benefit (“CERB”) is payable to workers who have “ceased working for reasons related to COVID-19” for at least 14 straight days.

When considering refusing to work due to fear or discomfort, workers need to understand that CERB may be denied or clawed back.  The legislation specifically states that quitting a job voluntarily does not meet the requirement of “ceased working for reasons related to COVID-19.”

 

EI can be lost due to work refusal

For many workers, Employment Insurance (“EI”) would be available if they were laid off due to lack of work or went on a medical leave.  EI is generally not available to a worker who quits.  The exception to this is a worker may quit and still get EI if they are able to prove that they had “just cause” to leave that job. What is “just cause” to quit your job and still get EI?  To paraphrase a Federal Court of Appeal judge, just cause means convincing the Canadian taxpayers that they should pay you money for your decision to become jobless. That sounds like a high bar to meet, but it is not impossible.

Under EI law, you may have “just cause” to quit your job if you can prove two things:

  • Your workplace was a danger to your health and/or safety; and
  • You had exhausted all reasonable avenues before quitting.

A work refusal due to fear and discomfort, rather than an objective safety risk, is not likely to be “just cause.”

 

Work refusals are risky for workers and employers

The stakes are very high for workers and business for work refusals.  We recommend that any worker considering a refusal to work get good legal advice before taking that step.  A loss of access to 16 weeks of CERB is $8,000, not to mention loss of potential severance pay.

For employers faced with a work refusal, there is also risk.  With the changing workplace safety requirements, it can be hard to know if you are compliant.  Any negative treatment of a worker after they make a safety complaint could be a Discriminatory Action, and get you in hot water with WorkSafe BC.  If you are aware that the worker could be entitled to a protected leave and ignore that, there is risk of an Employment Standards complaint.

Need help navigating work refusals?  We advise both workers and employers with proactive advice to avoid large losses down the road.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts.

Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

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Take this job and shove it

New Year, New Job - An Employment Law Perspective

Resolve to quit this year? I have advised many employees who are in a bad work situation, or have found a better job or business opportunity, and are ready to resign. Before you throw in the towel, here are a few key legal issues to consider:

Could this be a constructive dismissal?

If you are quitting, not by choice, but because of fundamental changes to your job to which you did not agree, this could be a constructive dismissal. If you have no choice but to quit because of a hostile or intolerable work environment, this could be a constructive dismissal. The threshold is pretty high - the changes have to be significant. It can be hard to prove that an environment is so hostile that you had to quit.

If it is a constructive dismissal, even though you are quitting, you might be entitled to severance pay. If you think a constructive dismissal is forcing you to quit, I recommend that you get legal advice before you hand in your resignation letter.

How much notice do I need to give?

I get this question a lot. The first thing I do is look at the written employment contract (if there is one). Some employment contracts specify the amount of resignation notice that the employee has to provide. If there is nothing in the contract, then I look at employer policies (if there are any). If there is a contract or employer policy that states the amount of resignation notice they expect, it is usually safe for an employee to follow that.

If there is no contract or policy, I explore with my client what is reasonable in the circumstances of their job. How difficult will it be for the employer to transition their work? 2 weeks notice is enough in many situations, but in some cases, less or more notice might be appropriate. It is also worth considering whether there might be some strategic advantage to providing a longer period of notice.

Can I take customers or company information with me?

This is a hot button issue for employers. If you are thinking about secretly copying or taking information, the fact that you are hiding it is a sign that it is probably a bad idea. You owe your current employer a duty of loyalty while you are still employed, and you may have duties that extend even after you have left. Some employment contracts contain "non-solicitation" or "non-competition" restrictions that limit what you can do for a period of time after you leave. These may or may not be legally enforceable. If you have this type of contract, or if you plan to take customers or company information, I strongly recommend getting legal advice about your rights and obligations, and the potential consequences.

Timing is important

There is rarely a perfect time to make a change, but it is important to consider what is on the horizon. Is there a bonus payment coming up? If it is a matter of a short delay, you may be better to wait until you have that money in your account before you resign.

Leaving on a good note

While the "take this job and shove it" approach can be appealing, it is not one that I recommend. It is always better to leave on a good note if you can. If you are feeling emotional, which is normal, it can help to put together a written resignation letter. Email is fine, but you should take time to carefully consider the wording and message that you are sending.

Or ignore all of the above and maybe you can be the star of the next funny quit video compilation on YouTube:

(Author has no connection to YouTube video creator, just googled funny quit videos, found this and laughed).

YOUTUBE QUIT VIDEOS

 

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts.

Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

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