Employment & Labour

Employee can rescind ‘equivocal’ resignation: OCA

By AdvocateDaily.com Staff

The Ontario Court of Appeal (OCA) has confirmed that for a resignation to be effective it must be clear and unequivocal, Vaughan labour and employment lawyer Arthur Zeilikman tells The Lawyer’s Daily.

Zeilikman, founder and director of Zeilikman Law, was counsel for the appellant in the case.

“As the decision indicates, if there is doubt which arises from the circumstances on the part of the employee, like in terms of the transaction as was the case here, a resignation may not be legally binding upon the employee,” he tells the online legal publication.

“The fact that the resignation was tendered in writing, as the case was here, is not the end of the story.”

According to court documents, the woman’s employer decided to upgrade its computer system. The appellant, a senior customer relations manager in her 60s, decided to retire, rather than learn a new system, The Lawyer’s Daily reports.

She sent her supervisor a letter saying she would retire at the end of the year. Her supervisor, in response, told her that she could rescind or reconsider the decision to retire.

The company decided not to proceed with the computer conversion, so the employee withdrew her notice. Some weeks later, the company told her they were honouring her retirement notice and would not allow her to rescind it.

The woman sued for wrongful dismissal and on summary judgment, Justice Mark Edwards, of the Superior Court of Justice, determined that her letter was a “clear and unequivocal” resignation, The Lawyer’s Daily reports.

The Court of Appeal did not agree. It ruled this was a wrongful dismissal and awarded the appellant 12 months’ pay in lieu of notice.

“The key takeaway is that one has to look at all the circumstances,” Zeilikman tells the publication.

“If there’s a transaction in dispute, the analysis has to take into account the circumstances of the rest of the transaction as well as the statements that are exchanged in addition to whatever is in writing. I think that’s very important,” he says.

Zeilikman points out that the court didn’t address the question of whether an employee can rescind a “clear and unequivocal” resignation.

“The court did not go there because it decided that [the woman’s] resignation was not clear and unequivocal. However, my position is that even where the resignation is clear and unequivocal, an employee should be able to [rescind] from it so long as the employer does not suffer detriment,” he says.

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