Picture the following scenario, which may be all too familiar for many in today’s fast-paced and stressful workplace: you find yourself growing continuously unhappy at work – perhaps as a result of a difficult boss, having to meet unrealistic deadlines, inadequate pay, or the overall feeling that you are under-appreciated. Then, you have one of those days where enough is enough and, in the heat of the moment, you say those two words you have dreamt about saying to your employer for months – “I quit”.
While at first you may feel proud of your sudden act of bravado, you may quickly realize that you made a huge mistake – you do not have another job lined up, you have a family to support, and you are now not entitled to any severance pay or Employment Insurance benefits. Does an employee have the ability to retract a resignation once it is made?
In the above scenario, the answer is likely yes.
Our courts tend to favour employees in cases where the validity of a resignation is at issue. This means employees who tender a resignation are sometimes able to withdraw it and continue on in their position as normal. While this may not seem fair to employers, our courts seem to recognize that human emotion is a powerful creature, that has the ability to cause people to make irrational decisions in the heat of the moment. Losing one’s job because of a rash decision to quit can have significant consequences. Depending on the circumstances, what appears to be a true resignation on its face may not actually be valid, even if the employer has accepted it.
Until an employer accepts the resignation, an employee may retract it. If not, the employer may be found to have wrongfully dismissed the employee and be liable for wrongful dismissal damages. However, even if the employer has accepted the resignation, an employee may resile from a resignation provided the employer has not acted to its own detriment or suffered any expenses by reasonably relying on it.
The Ontario Court of Appeal’s decision of Kieran v. Ingram Micro Inc. (2004), 189 O.A.C. 58 (Ont. C.A.)., confirms the principles with respect to determining whether a resignation is valid. Overall, a true resignation must be voluntary and unequivocal, and must not be given on impulse. Accordingly, if an employee resigns as a result of a loss of temper, the resignation will likely not be valid.
In some cases, the actual words or actions of the employee with respect to the resignation may be in dispute. In the face of conflicting evidence, the court has a tendency to resolve any discrepancies in the employee’s favour and a contextual approach will be used to determine the employee’s actual intention to resign. The surrounding circumstances of the resignation, including assessing the events leading up to and following the resignation, are relevant. For instance, an employee’s subsequent actions may reinforce the intention to resign, such as communicating to co-workers and clients that he or she in fact resigned, or, if the employee commences serious job searches soon thereafter.
The threshold our courts use in assessing the validity of resignations is, whether a reasonable person viewing the matter objectively, would have understood the employee to have unequivocally resigned. In Upcott v. Savaria Concord Lifts Inc. (2009), 2009 CarswellOnt 4607 (Ont. S.C.J.), after a dispute with a fellow co-worker, the plaintiff employee told his employer that he quit. He turned in his keys, left the workplace, and left a phone message for his boss to ask about picking up his belongings from the office. The employer interpreted the employee’s actions as a resignation and sent a follow-up letter advising that the resignation was accepted. However, the Court concluded that, despite the employee expressing a clear intention to resign, the resignation was not valid.
The Court indicated that a reasonable person viewing the situation objectively would not have concluded that the employee’s words and actions amounted to a voluntary resignation, but instead, understood the employee to have gone through a foolish fit of anger, and that he would have likely retracted his resignation quickly after leaving the office. By refusing to allow the employee to come back to work afterwards, the Court concluded that the employer engaged in a wrongful dismissal and awarded the employee $50,000 in damages.
Takeaways for Employees:
- Avoid making rash decisions at work. If you are facing difficulties at work, express these concerns with your employer as soon as possible when you are calm and can think logically.
- Always indicate your resignation in writing to the employer in clear and unequivocal language.
- If you do not intend to actually resign despite stating otherwise, do not afterwards engage in conduct consistent with the intention to resign (i.e. do not tell co-workers you have quit, or proceed take your personal belonging home from the office).
- The timing of the retraction is important. If you resign abruptly, notify your employer as soon as possible that you wish to retract the resignation. A court is more likely to conclude that the resignation was not valid if you immediately take steps to rescind it.
Takeaways for Employers:
- If it appears an emotionally charged employee has made a resignation, do not immediately act upon it.
- If there is any doubt whether an employee voluntarily intended to resign, consider giving the employee a reasonable “cooling off” period, perhaps for a few hours or a day, and then seek clarification from the employee as to his or her actual intention to resign – do not just assume.
- Before accepting the resignation, consider whether there are any external factors that might be influencing the employee, such as a potential mental health issue or a workplace situation causing unusual behavior. The real test is whether an employee’s actions are consistent with someone voluntarily wishing to quit.
- After the “cooling off period”, if there is a reasonable basis to conclude that the employee has in fact resigned and intended to do so, advise the employee in writing the acceptance of such resignation.
- Ensure that you are not forcing a resignation upon an employee. Resignations arising from an ultimatum or a unilateral change to the employee’s position which the employee does not accept will likely amount to a wrongful dismissal.
- Consider whether you have expended any time or resources with respect to the employee’s resignation. For instance, if you have incurred costs to hire a replacement this might hinder the employee’s ability to argue that the resignation was not valid.
- Request that all resignations be submitted in writing.
Jennifer Corbett is an associate lawyer with Samfiru Tumarkin’s Labour and Employment Law Practice Group in Toronto, Ontario.