The Law of Work
  • Home
  • About
  • Professor David Doorey
  • Osgoode Hall LLM
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
  • Home
  • About
  • Professor David Doorey
  • Osgoode Hall LLM
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
The Law of Work
Law of Work Archive

"Give Me A Raise, or I Quit". Is that a Quit if the Employer Declines the Raise?

by David Doorey February 27, 2014
written by David Doorey February 27, 2014

If an employee says “I quit” and storms out of the workplace, have they quit?  Maybe. Maybe not.  And whether the employee has quit makes a big difference, because if an employee quits, then they end the contract and the employer does not have to provide notice of termination.  However, if the employee has not quit, and the employer acts as if a quit did occur, then the employer can be ordered to pay damages to the employee.  These ‘quit’ cases often make for entertaining reading, but they are not much fun for employers and employees, since there can be so much uncertainty.
Take a recent decision from Nova Scotia called Kerr v. Valley Volkswagen.
Key Facts
The employee (EE) worked for a Volkswagen dealership for 7 years, never receiving a raise the entire quittime.  The judge found that the EE went to a manager’s office one day and said: “I want a $100 per week raise or I’m gone.”  He stated that he had another job opportunity available to him that paid him more money, and that he intended to quit if he did not receive a $100 per week raise.   The employee continued to work for the next three weeks, but the employer then informed the EE that it had accepted his offer to resign, since it would not be giving him a raise.
The employee sued for wrongful dismissal, arguing that he had not quit and therefore had been terminated without notice.
Issue:    Did the EE offer to resign, and did the employer subsequently accept that offer, thereby bring the contract to an end?
Court’s Decision:
The Court began its reasons by referencing several well known Supreme Court of Canada decisions in which the court had emphasized that employment contracts are defined by a power imbalance, and that employers have a duty of fair dealing at the point of termination of the contract (McKinley v. BC Tel, Wallace v. UGG, and Honda v. Keays), since employees are particularly vulnerable.
The Court then turns to the law on resignation.  That law is easy enough to state, and the Court cites the Ontario decision in  Kieran v Ingram Micro Inc., [2004] OJ No. 3118 (ONCA) for the principle:

A resignation must be clear and unequivocal. To be clear and unequivocal, the resignation must objectively reflect an intention to resign, or conduct evidencing such an intention

A more detailed and useful summary of the case law follows:

Case law suggests that where an employee expresses dissatisfaction with an employer or about a wrong committed by the employer (real or perceived), and declares an intention to seek other employment without words or actions indicative of an immediate firm intention to quit, he or she has not quit.  (See:  Mosher v Twin City Dairy (1984), 63 NSR (2d) 252 (NSSC); Widmeyer v Municipal Ent. Ltd. reflex, (1991), 103 NSR (2d) 336 (NSSC);Tolman v Gearmatic, [1986] BCJ No. 481 (BCCA); Danroth v Farrow Holdings Ltd., 2005 BCCA 593 (CanLII), 2005 BCCA 593, Assouline v Ogivar Inc., [1991] BCJ No. 3419 (BCSC); Turner v Westburne Electrical Inc., 2004 ABQB 605 (CanLII), 2004 ABQB 605; Carmichael v Mantis Racing Inc., [2009] OJ No. 5676 (OSCJ), and Ruparell)

[38]               Case law suggests that where the employee, in a state of depression, frustration or emotional angst makes a hasty (usually) statement that he or she quits and shortly thereafter, realizing the rashness of his or her statement or actions, either retracts the statement in short order or engages in discussions with the employer to patch up the dispute leading to the declaration of intent to quit, the employee has not quit.  (See:  Cranston v Canadian Broadcasting Corp. (CBC), [1994] OJ No. 605 (OSCJ); Maguire v Sutton, [1998] BCJ No. 138 BCSC); Movileanu v Valcom Manufacturing Group Inc., [2007] OJ No. 4414 (OSCJ); Turner; Carmichael; Robinson and Burns)

[39]               On the other hand, when the words or actions of the employee demonstrate a clear intent to resign, either unconditionally, or as part of an ultimatum, the courts have not hesitated to find that the employee quit.  (See:  Bevis v Renaissance Wine Merchants Ltd., 2006 ABQB 8 (CanLII), 2006 ABQB 8 (upheld on appeal: Bevis v Renaissance Wine Merchants Ltd., 2007 ABCA 356 (CanLII), 2007 ABCA 356); Eichenberger v Heath Consultants Ltd., [1997] BCJ No. 2682 (BCSC); Larsen; Anderson; and Billows v Canare Forest Products Ltd., 2003 BCSC 1352 (CanLII), 2003 BCSC 1352)

Applying this law to the facts, the Court rules that the EE gave the employer an ultimatum, that either he receives a raise or he quits.  No raise was given, and the employer accepted the resignation.  According to the Court:   “[The EE’s] threat to resign was made in clear and unambiguous terms.  In all the circumstances of this case, a reasonable person would have understood that [the EE] was serious in his intention to resign and take up another job opportunity that would pay more, if he was not given the demanded raise.”  The employer was within its rights to accept the resignation, and it did so.  The EE had three weeks to rescind his resignation, but he did not.  Therefore, the wrongful dismissal was dismissed since the employee resigned.
Issues for Discussion
Courts have often found that an employee’s statement that they are quitting does not amount to a quit.  Do you agree with the court’s approach, which recognizes that an employee may make comments in a moment of frustration that they do not mean?
If an employer treats an employee’s expression that they are quitting as a quit, but later a court rules that there was no clear intention to quit, the employer will be ordered to pay damages for wrongful dismissal.  Therefore, what advise would you give an employer confronted with an employee who threatens to quit?
The court here says that the EE could have rescinded his ultimatum at any time during the three weeks between the date he made it and the date the employer accepted the quit.  If the employee had done that, do you think that the employer could have nevertheless treated the threat as grounds for dismissal with cause (without notice)?
 
 

0 comment
0
FacebookTwitterLinkedinEmail
David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is Academic Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and a Senior Research Associate at Harvard Law School’s Labor and Worklife Program. Professor Doorey is a graduate of Osgoode Hall Law School (LL.B., Ph.D), London School of Economics (LLM Labour Law), and the University of Toronto (B.A., M.I.R.).

Leave a Comment Cancel Reply

You must be logged in to post a comment.

previous post
Has Anything Changed With Tim Hudak's New Claim That He Is Dropping "Right to Work"?
next post
Guest Blog: Professor Michael Lynk on "What Does Academic Freedom Protect?"

You may also like

This Blog Entry is About the Lunacy of...

July 21, 2019

A Cross Country Update on the Card-Check versus...

October 3, 2018

The Folly of Not Voting to Strike in...

September 16, 2018

Unifor Posts Photos of Replacement Workers as Gander...

September 10, 2018

A Wrongful Dismissal Case and the Absence of...

August 29, 2018

China Said to Quickly Withdraw Approval for New...

August 27, 2018

The Latest Hot E-Commerce Idea in China: The...

August 27, 2018

The Trump Administration Just Did Something Unambiguously Good...

August 27, 2018

Unstable Situations Require Police In Riot Gear Face...

August 27, 2018

Trump’s War on the Justice System Threatens to...

August 27, 2018

Follow Us On Social Media

Twitter

Latest Tweets

David J. Doorey🇨🇦 @TheLawofWork@mas.to Follow

Law Prof. Talking #labor & #employment #law to the masses. @YorkUniversity @OsgoodeNews @LSELaw @CLJEHarvard @Jacobin @OnLaborBlog https://t.co/5V9r8VPHsh

TheLawofWork
thelawofwork David J. Doorey🇨🇦 @TheLawofWork@mas.to @thelawofwork ·
10h

I can’t believe that Almost Famous came out 23 years ago.

Time is flying by.

Reply on Twitter 1622776388179705859 Retweet on Twitter 1622776388179705859 3 Like on Twitter 1622776388179705859 14 Twitter 1622776388179705859
thelawofwork David J. Doorey🇨🇦 @TheLawofWork@mas.to @thelawofwork ·
11h

I had an LLM student who had a part-time job phantom writing labor arbitration decisions based on arbitrator’s notes and instructions.

Like law clerks do for judges (except parties don’t know about the phantom arb writer).

Is using a machine different? Interesting debate.

Valerio De Stefano @valeriodeste

The crucial part starts on p. 5, where the Court reports the answers to the legal questions they posed to ChatGPT. Then, at the end of p. 6, the Court adopts the arguments given in these answers as grounds for its decision.

Reply on Twitter 1622759377944952834 Retweet on Twitter 1622759377944952834 5 Like on Twitter 1622759377944952834 8 Twitter 1622759377944952834
thelawofwork David J. Doorey🇨🇦 @TheLawofWork@mas.to @thelawofwork ·
12h

Quebec passed anti-scab legislation in 1977, BC in 1993, & Ontario 1993-95.

Hysterical claims that these laws cause job losses & loss of investment aren't supported by evidence. Businesses just don't like them.

Short 🧵

1/

Seamus O'Regan Jr @SeamusORegan

We’re banning replacement workers, as we said on Oct. 19th.

We’re working with unions and employers to get the balance right.

As agreed, government will introduce legislation by the end of this year.

Reply on Twitter 1622745098088861702 Retweet on Twitter 1622745098088861702 16 Like on Twitter 1622745098088861702 39 Twitter 1622745098088861702
Load More

Categories

  • Alberta
  • Artificial Intelligence
  • Australia
  • British Columbia
  • Charter of Rights and Freedoms
  • Childcare
  • Class Action
  • Climate and Just Transition
  • Collective Bargaining
  • Common Law of Employment
  • Comparative Work Law
  • competition law
  • construction
  • COVID-19
  • Diversity
  • Employee Classification
  • Employment Insurance
  • Employment Regulation
  • Europe
  • Financial Industry
  • Fissured Work
  • Freedom of Association
  • frustration of contract
  • Gig Work
  • Health and Safety
  • Health Care
  • Human Rights
  • Immigration
  • Interest Arbitration
  • International Law
  • Labour Arbitration
  • Labour Economics
  • Law of Work Archive
  • Legal Profession
  • Manitoba
  • Migrant Workers
  • Minimum Wage
  • Newfoundland
  • Nova Scotia
  • OLRB
  • Ontario
  • Pension Bankruptcy
  • Privacy
  • Public Sector
  • Quebec
  • Real Life Pleadings
  • Saskatchewan
  • Scholarship
  • Sports Labour
  • Strikes and Lockouts
  • Student Post
  • Supreme Court of Canada
  • technology
  • Transnational Law
  • Uncategorized
  • Unions and Collective Bargaining
  • United States
  • Videos
  • Women and Work
  • Wrongful Dismissal
  • Home
  • About
  • Guest Contributors
Menu
  • Home
  • About
  • Guest Contributors
  • Legal Scholarship
  • Useful Links
  • Archive
Menu
  • Legal Scholarship
  • Useful Links
  • Archive

2020. Canadian Law of Work Forum. All Rights Reserved.