Why Are You Quitting?

In my employment practice, I sometimes run into employees who are fed up with their jobs and want to quit.  Sometimes, it is clear that the employer would be more than happy to see them leave and is making a point of making things less than pleasant for the employee. 

Should you quit in those circumstances?  Usually, the answer is a resounding “NO”.  Here’s why:

If you quit under normal circumstances, you are not entitled to anything from your employer other than your outstanding wages and any accrued vacation pay.  Further, if you quit, you are not entitled to Employment Insurance benefits.  (Of course, this makes perfect sense.  EI is for people who lose their jobs involuntarily, not for people who quit of their own volition.)

There are times when an employer makes your life miserable and you feel like quitting.  Sometimes, if the employer’s conduct is extreme, the law considers that the employer has “constructively dismissed” you by breaking the employment contract.  In those cases, you are entitled to “quit”, but the law treats you as if you had been terminated.  That means that you are entitled to pay in lieu of reasonable notice and you will be eligible for EI benefits. 

One warning: do not quit and claim “constructive dismissal” without first getting advice from a lawyer.  If you are wrong, you get nothing!

I can tell you that I have NEVER had the occasion to advise someone to quit and claim constructive dismissal. At all the employment courses I have attended, the experienced lawyers have all said the same thing.   

The problem is that the employer is going to take the position that you quit and are entitled to nothing.  You will have to fight to get the money you deserve.  EI will have to investigate before they decide if they will allow your claim.  

Here is the most important reason not to quit and claim constructive dismissal.  Statistically, the vast majority of lawsuits are settled before trial.  We’re talking upwards of 95%.  The number is even higher for wrongful dismissal cases.  Cases settle because people want to eliminate the risk of losing. Settlement necessarily involves compromise.  The more “live issues” in your case, the greater the risk.  The greater the risk, the more you will need to compromise to achieve settlement. 

Now, if you quit and claim constructive dismissal, you have created a huge issue:  did you have grounds to quit?  If not, you lose.  I call this a “threshold” issue.  It’s an issue that decides the case.  That kind of issue might mean a 50% discount on your settlement prospects, in addition to all the other risk factors that might be present in your case.  Why would you do that to yourself?

There are some rare occasions where one might need to quit.  For example, if an employee is being physically assaulted by another employer, it may well be necessary.  In my experience, those are rare cases indeed.