The term “quiet quitting” has been trending on various social media platforms in the last few weeks. It has been reported on in various news media as well. Quiet quitting seems to be linked to other popular workplace related issues such as difficulties of maintaining a work-life-balance or setting appropriate boundaries at the workplace whether the workplace is at home or at an office. And, as such, especially given how these issues have really sprouted over the pandemic, it is not surprising that quiet quitting has garnered some attention. However, regardless of how the term has been used by the public, this blog seeks to provide our readers with an employment law perspective on “quiet quitting.”
What is Quiet Quitting?
Quiet quitting refers to a situation where an employee fulfills only the necessary tasks and responsibilities of their job and nothing more. So, for example, an employee would perform the duties of their job as set out in their employment agreement or contract. They would refuse to do anything beyond what is set out in the contract. The employee may also refuse to stay late or do any overtime work. They may refuse to answer phone calls or emails beyond office hours. They would not come in early to the office or log in online while at home any earlier or later than a typical workday.
Can I be fired or dismissed because of Quiet Quitting?
So here is where an employment lawyer’s perspective on quiet quitting can be of assistance to individuals thinking about undergoing “quit quitting.” The most crucial question should be whether an employer can terminate an employee’s employment for quiet quitting. And the answer is – of course they can.
Now this does not mean that the employer can terminate the employee without notice or “for cause.” To remind our readers, under the Employment Standards Act, 2000 (“ESA”) or the common law, an employer does not have to give an employee any reason as to why their employment is being terminated. And, certainly, an employer may understandably want to terminate an employee who is only fulfilling the basics of their job and to replace that employee with one who is more willing to do things that may go a bit beyond simply what is set out in the contract of employment. So, in most cases involving indefinite employment, if the employer chooses to dismiss the employee, the employer must still provide the employee with reasonable notice of dismissal, severance pay, if applicable, and other statutory minimums.
We would also say that it is doubtful that the employer could terminate the employee for cause for “quiet quitting.” In employment law, being terminated “for cause” is a last-resort remedy. It also means that the employer dismisses an employee without providing notice of dismissal or a severance package, as there is an alleged “cause” for the termination. Termination for cause is an appropriate response by the employer where the employee has engaged in serious acts of wrongdoing. It also is appropriate in cases where the employer has made attempts at using progressive discipline and the employee has not responded to that discipline and modified their bad behaviour. Normally, termination for cause is found in things like habitual neglect of duty, incompetence or significant misconduct (depending on the type of behaviour, an employee may still be entitled to statutory minimums even though the employee’s conduct meets the definition of cause on a common law standard). Things that truly amount to “cause” go to the root of the employment contract, and it becomes impossible for the employment relationship to continue. For “quiet quitting” to amount to cause, the employer has to be able to argue that those once “extra” duties that the employee has been performing, have themselves become fundamental terms of the employment contract. Any consequent (and intentional) abstention from performing said duties amounts to insubordination and, as such, cause for summary dismissal. Of course, this argument would be more plausible in the absence of a written employment agreement where an employer can establish a long period of workplace practice giving rise to the argument that the employee has, effectively, created new contractual duties for themselves.
Courts have generally not found in favour of employers who dismiss an employee for cause unless the behaviour on the part of the employee is in breach of the employment contract and this breach is serious. There is no real breach of the employee’s employment agreement if as the term quiet quitting suggests the employee is reviewing what is in the employment contract and simply following the tasks as set out there.
So, the bottom line is this – while an employer may be prevented from terminating an employee for cause due to quiet quitting, they may still terminate the employee if they provide the appropriate notice of termination to that employee.