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.
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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.
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