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June 2, 2017

Employee who quit suddenly and “went dark” slapped with $75,000 bill

An employee who quits to work for a competitor can be liable for breach of contract and civil conspiracy, the Ontario Superior Court recently found after 10-day trial. But such a determination is going to turn on the facts, as you can tell from even a basic retelling of the background to Prim8 Group Inc v Tisi, 2016 ONSC 5662.

The Court found that a partner at an ad agency had left suddenly, with no notice, unlawfully taking sensitive client information and computer equipment under the cover of night.

A month later, one of his former employees left to join him at the former partner’s new firm. The former partner and the employee discussed how this employee should quit: by quitting suddenly and then “going dark” for a period. Going dark included refusing to attend work and refusing to respond to requests for security passwords.

As you can imagine, the company successfully sued the former partner. But what may not be obvious is that the employee that left was also liable for a portion of the damages — $40,000, plus a whopping $35,000 of his former employer’s legal bills.

The Court found that the employee breached implied terms in his contract of employment: the duty to give reasonable notice of resignation, and the duty of good faith and loyalty. These are implied terms of every employment contract, as we have explained in an earlier post.

The civil conspiracy aspect is a little more complicated. But the bottom line is that the employee and the former partner knew the employee’s sudden departure would cause harm to the employer, and he did it anyway. Add to that the unlawful act (quitting with no notice) and the fact it was discussed between them before it happened, and the Court concluded it amounted to conspiracy.

Navigating the end of an employment relationship is tricky, whether you are the employer or the worker who is leaving. However, as Tisi shows, there can be very real legal consequences for employees who don’t make that exit in good faith.

Millard & Company specializes in employment and human rights law and has represented parties in many cases both inside and outside of the courtroom.

By Marcus McCann; photo by Ed Schipul, cc


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