DID I JUST LEGALLY RESIGN FROM MY JOB? CAN I TAKE IT BACK? RESIGNATION FROM EMPLOYMENT – EXPLAINED AND FIVE BEST PRACTICES TIPS TO EMPLOYERS

HARD LABOUR – BY WARDSPC LAWYERS

DID I JUST LEGALLY RESIGN FROM MY JOB? CAN I TAKE IT BACK? RESIGNATION FROM EMPLOYMENT – EXPLAINED AND FIVE BEST PRACTICES TIPS TO EMPLOYERS

An employee who resigns, verbally or in writing, may ask to ‘take back’ his or her resignation. This creates an issue for the employer, of course, particularly if the resignation is a welcomed outcome to the relationship. Ontario law says that an employer may be obliged to allow an employee to withdraw or retract a resignation depending on the circumstances.

What is required by an employee to constitute a resignation from employment?

When is an employee entitled to resile, or take back, a resignation?

Firstly, to be a valid and enforceable (by an employer), an employee’s resignation must be clear and unequivocal. The resignation or conduct by the employee must, objectively viewed by a reasonable person in the surrounding circumstances, indicate an intention to resign. Resignations in a fit or state of anger, frustration or emotional upset, or in “a spontaneous outburst in highly charged emotional circumstances can undermine its essential voluntariness” may not qualify as true resignations and, therefore, not be enforceable by the employer.

If there is a clear and unequivocal notice of resignation (a valid and enforceable resignation) by the employee, he or she may be able to resile form the resignation, or take it back, until either: (a) the employer expressly accepts the resignation; or (b) the employer relies on the resignation to its detriment. If it is clearly accepted, showing detrimental reliance would not be necessary.

In Ontario, employers effectively have a duty to do more than accept a purported resignation at face value, particularly if it is given in heated circumstances or by an employee who may be experiencing a disability, such as a mental condition, for example. Verbal resignations can be problematic, of course. Employers should take the step of verifying with the employee, who verbally resigns, that he or she actually and truly wishes to resign, especially if the circumstances involve an emotional or heated situation. Employers should always document resignations in writing with the employee. However, even written resignations can be disputed as being involuntary, or given during undue stress or duress, for example. Generally speaking, if there are emotional circumstances at the time, a ‘cooling off’ period should be given by employers, to verify the true intention of the employee. Employers should also give formal (written) acceptance of any resignation, whether given verbally or in writing.

Five Best Practice Tips for Employers:

Employers faced with a verbal or written notice of resignation should consider:

1.   giving a ‘cooling-off’ period to an employee who resigns, or purports to resign, especially if there may be special circumstances, such as potential mental health-related issues, family issues or other potential sources of undue stress or pressure affecting the employee at the time;

2.   requesting that resignations be given only in writing, if possible; 

3.   respond to resignations (in writing, ideally) with written acceptances, but only after considering if any special factors exist or may be known by the employer that potentially may have unduly influenced the employee’s decision to resign (including potential mental health-related issues);

4.   avoiding any steps after receiving the resignation that may be viewed as non-acceptance of the resignation, like calling a meeting or telephoning the employee afterwards (or engaging in any verbal discussions with the employee); and 

5.   allowing an employee, if requested, to withdraw or retract a resignation, subject to further considering: a) the time that passed between the resignation and request to retract; b) any special circumstances regarding the employee; c) whether ‘detrimental reliance’ steps were already undertaken by the employer; and d) whether the resignation was accepted in writing previously.

Case References:

Johal v. Simmons de Silva LLP, 2016 ONSC 7835 (CanLII)

Gebreselassie v. VCR Active Media Ltd., [2007] OJ No. 4165

Bru v. AGM Enterprises Inc., 2008 BCSC 1680

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Thank you for reading this - Jason Ward of WARDS PC LAWYERS.

If you would like to read more, please go to wardlegal.ca/blogs.  

This WARDSPC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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THE NEW RULES IN ONTARIO - WORKPLACE HARASSMENT – COMPLIANCE TIPS

HARD LABOUR – BY WARDSPC LAWYERS

THE NEW RULES IN ONTARIO - WORKPLACE HARASSMENT – COMPLIANCE TIPS

Since September 8, 2016, Bill 132 substantially upgraded Ontario’s Occupational Health and Safety Act and employers’ obligations for workplace (sexual) harassment. These sweeping changes impose new, proactive measures on all workplaces in Ontario – compliance is now being audited by Ontario’s Ministry of Labour. Non-compliance can mean significant fines, penalties and potential civil liability.

Employers in Ontario must:

  • make and prominently (conspicuously) post in the common area(s) of the workplace a new (or revised) workplace harassment policy, compliant with these new changes – it is mandatory; obtain the assistance of a qualified employment lawyer or, if that is not possible, at least refer to the Ontario Ministry of Labour’s “Code of Practice” for guidance and assistance, if necessary;
  • update the definition of workplace sexual harassment in the mandatory workplace policy: “Workplace sexual harassment” is defined as:

(a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known, or ought reasonably to be known, to be unwelcome; and/or

(b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows, or ought reasonably to know, that the solicitation or advance is unwelcome.

  • establish and implement a joint health and safety committee in your workplace (particularly for workplaces having twenty or more workers) and liaise with the committee’s health and safety representative(s) to develop (or update) a written program or plan to implement the mandatory workplace harassment policy (a “Program”);
  • take care to ensure the Program complies with the new law, including:

-     measures and procedures for reporting incidents of workplace harassment: (a) to the employer or supervisor; and (b) to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser (such as an alternative procedure for employees to report directly to a human resource representative);

-     alternative reporting options to a person who is not subject to the direct control of the alleged harasser if the incident or complaint involves the employer (such as an owner, senior representative, upper manager, director, etc.), which may include third party, so-called “whistleblowing” services, if necessary, and ensure contact information is provided in the Program;

-     explain fully how incidents or complaints of workplace harassment will be investigated and addressed;

-     explain how information acquired regarding an incident or complaint of workplace harassment will be kept confidential, unless disclosure is necessary for the purposes of the investigation or required by law;

-     explain how a complainant and respondent, if a co-employee, will be informed of the results of the investigation and any corrective action or measures taken; and

-     affirm that a written report (summary) of the results of the investigation and any corrective action taken will be provided;

  • train all workers, including managerial employees, about the mandatory policy and the Program and they acknowledge the training, in writing;  
  • Tickler for at least annual review of the mandatory policy and Program and keep good records for the review(s);
  • investigate all incidents and complaints of workplace harassment (fairly and completely);
  • retain a third party, professional investigator or, at least, ensure any internal investigator is properly trained for investigating complaints and workplace harassment generally;
  • only utilize an investigator who is, and who will be perceived as, competent and impartial;
  • make every effort to complete the investigation and release the summary report within ninety days of the initial incident or complaint; and
  • be prepared for the Ministry of Labour to order a third party investigator at the employer’s expense, particularly if the employer does not act properly in appointing its own investigator, internal or external.  

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Thank you for reading this - Jason Ward of WARDS PC LAWYERS.

If you would like to read more, please go to wardlegal.ca/blogs.  

This WARDSPC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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THE RULES IN ONTARIO - WORKPLACE VIOLENCE – EMPLOYERS’ DUTY TO PROTECT EMPLOYEES EXPLAINED

HARD LABOUR – BY WARDSPC LAWYERS

THE RULES IN ONTARIO - WORKPLACE VIOLENCE – EMPLOYERS’ DUTY TO PROTECT EMPLOYEES EXPLAINED

Protecting workers from workplace violence is an increasingly important objective of the Ontario Ministry of Labour, the Court and both employers and employees.

Failure to do so can result in criminal prosecution of employers under the workplace violence section of Ontario’s Occupational Health and Safety Act (the “OHSA”). For example, recently an employer in Ontario was criminally fined more than $150,000 after workers were assaulted by a youth in care at the employer’s care facility.  

Generally, employers must “take every precaution reasonable in the circumstance for the protection of a worker” and “provide information, instruction and supervision to protect the health and safety of a worker.” The Violence and Harassment sections of the OHSA set out minimum standards expected of employers to achieve this general duty, including:

  • a mandatory, written workplace violence policy, which should be prominently and conspicuously posted in the common area(s) of the workplace and otherwise brought to all workers’ attention, as may be appropriate in the circumstances; and
  • a complementary program to implement and maintain the mandatory policy, including: “measures and procedures for summoning immediate assistance when workplace violence occurs or is likely to occur.”

The OHSA does not mandate a cookie cutter-style program suitable for every employer; rather, employers must devise their own policy and program based on their own workplace environment and individualized needs. Admittedly potential risks may be difficult to identify and assess in advance and, therefore, assessing whether a policy and program is adequate initially – nonetheless, employers must statutorily use their best efforts to do so, in consultation with everyone in the workplace ideally. Of course, any incident of workplace violence is likely to presumptively challenge whether the policy and program were adequately designed and implemented at the outset. Foreseeability of potential risk is, therefore, an important factor in effective workplace violence prevention. 

Generally, the OHSA, the Ministry and even the Court promote the minimization of workplace violence by requiring employers, supervisors and workers to proactively and collaboratively consider and identify potential risks, to address them by open and constructive communication and to react properly and with certainty when any risk materializes.

If a criminal prosecution arises, the standard of proof is beyond a reasonable doubt. Employers may assert a due diligence-type of defence, if desired. What remains uncertain is the scope of the measures employers may need to take to establish this defence successfully. For example, removal of a potentially risky person in the workplace may create other legal issues, such as wrongful termination (if a worker), duties owed to patients (in a health care environment) and potential grounds of discrimination under Ontario’s Human Rights Code.  

The best practice is to develop and implement a thoughtful, thorough and collaborative violence policy and complementary program to detect, prevent and minimize incidents of workplace violence. The policy and program should be regularly reviewed, revised, if appropriate, and certainty modified to address any incident of violence in the workplace. These practices will not only minimize incidents, but also assist employers to establish due diligence if a prosecution ensues due to any incident. 

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Thank you for reading this - Jason Ward of WARDS PC LAWYERS.

If you would like to read more, please go to wardlegal.ca/blogs.  

This WARDSPC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

read more