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In order for a resignation to be viewed as valid and enforceable, it must be clear and unequivocal. This means that when viewed by a reasonable and objective person, it can be confirmed that the employee had an intent to resign from their position. For example: in a heat of the moment situation where an employee lashes out and yells that they are quitting their job after being reprimanded by their boss, the resignation will likely not be seen as valid and enforceable. However, submitting a carefully considered resignation letter is more likely to be considered valid and enforceable.
In cases where the resignation is found to be valid there is a period of time where it can be withdrawn by the employee. Generally the law recognizes that the window of time to retract a resignation ends when the employer expressly accepts the resignation, or the employer relying on the resignation to its detriment. The window to retract the resignation ends upon the employer doing one of the two actions.
(1) Express Acceptance of the Resignation
If an employer has not expressly accepted the resignation, an employee can generally withdraw it up until the employer chooses to acknowledge and accept the resignation. Ex. an email or letter saying that the employer ‘accepts the resignation’.
(2) Detrimental Reliance
This situation is only relevant if the employer has not accepted the resignation, but rather they choose to move forward and act upon the resignation. Essentially, if the employer would suffer from the employee withdrawing their resignation because they have begun to act on it and/or incurred any financial expenses from it, the resigning employee is unable to withdraw.
In some cases, an employee may provide their employer with an ultimatum, stating that if something is not changed within a time frame they will quit. If a cooling off period has passed and the employee has not withdrawn the ultimatum, the employer can accept and act on the resignation. This was the situation in Kerr v. Valley Volkswagen, 2015 NSCA 7 (CanLII), where the employee was found to have offered a clear and unequivocal ultimatum. Mr. Kerr worked as a parts manager at a car dealership and told Mr. Benjamin, his supervisor, that he wanted a raise of $100 a week or he would quit because he had another job opportunity where he would receive such a raise. Mr. Kerr was given a three-week period to improve his performance to earn his raise; however, no improvements were made, and the ultimatum was not withdrawn. After the improvement period, management accepted the resignation and subsequently, Mr. Kerr attempted to withdraw his ultimatum but was unsuccessful. The courts found that a reasonable person observing the situation would think that Mr. Kerr had intended to resign from his position.
More recently, in the case of English v. Manulife Financial Corporation, 2018 ONSC 5135, in September 2016 Ms. English, the employee, provided her notice of retirement/resignation stating that it would be effective as of December 2016. Upon handing in her notice, Mr. Ramnath, her supervisor, let her know that there was the option to reconsider and withdraw her resignation. Ms. English understood this as meaning she had until December 2016 to withdraw her resignation, but Ms. English stated that she was “sure” she wanted to retire. In October 2016, the circumstances surrounding her desire to retire changed, and she verbally expressed her intent to withdraw her notice, however, failed to provide any written confirmation. Between October and November 2016, discussions took place between Mr. Ramnath and the Human Resources department regarding Ms. English’s intent to withdraw her resignation, and ultimately, on November 25, 2016, Mr. Ramnath advised Ms. English that her notice of retirement would continue to be honoured. On December 12, 2016, Ms. English was advised that she did not need to come back to work.
It was found that Manulife had accepted Ms. English’s notice of retirement after providing ample time to reflect on the decision. Because the resignation was found to be clear, unequivocal, and accepted, detrimental reliance was not necessary. At the moment of acceptance, Manulife was no longer obligated to allow Ms. English to withdraw her resignation as she was bound by it.
Takeaways for Employers:
- Request that resignations be submitted in writing;
- If an emotional employee submits a resignation, provide a brief cooling off period before seeking clarification and accepting the resignation;
- If the cooling off period has passed and the employee has chosen to proceed, provide a written acceptance of the resignation;
- Consider whether any additional time or resources were spent due to the employee’s resignation; and,
- If there are no ‘downside’ to allowing employment to continue, permitting the withdrawal is likely the best option.
Takeaways for Employees:
- Always express a resignation in writing to the employer and use clear and unequivocal language (i.e., “my last day of work will be _____” rather than “I think I’m leaving on ________.”);
- If there is no actual intent to resign from the position despite stating otherwise, do not follow through with actions consistent of a resignation (i.e., do not begin to pack up your work station or bring home your personal belongings that would otherwise be left at the office); and,
- If the resignation was emotionally driven, and once a brief period has passed and there is no longer intent to resign, notify the employer of the withdrawal as soon as possible in writing.
It is best to talk to a lawyer specializing in Employment Law if the underlying reason for resigning from your position is not because you want to necessarily leave your current position or have a different position lined up. Contact Monkhouse Law today for your free 30-minute consultation (416) 907-9249.
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