As many employers know, an employee who decides to leave an organization out of their own volition is not entitled to notice and/or severance pay, either by statute or at common law (judge-made law). Those entitlements are typically reserved for employees terminated without cause.
Accordingly, when a problematic employee says, “I quit,” many employers quickly assume they have dodged a bullet and do not owe the employee any payments (aside from what the employee has already earned). Unfortunately, it is not always that simple.
The distinction between a resignation and a dismissal can be extremely grey — what appears to be a resignation can in fact (and in law) be a dismissal, thus potentially entitling employees to significant compensation. This is referred to as the law of constructive dismissal and, perhaps one of the most grey areas of employment law.
The Grey Zone is a new weekly series written by the team at Hyde HR Law, in partnership with Talent Canada. This series explores various workplace issues that senior leaders and HR professionals should consider.
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