Employment & Labour

Once resignation accepted by employer, employee cannot resile

By Barry B. Fisher

In this case, the judge had a situation where an employee gave her employer four months’ notice of her resignation because she did not want to be involved in an upcoming computer conversion that was planned. The employer accepted her resignation and started to make plans to redistribute her work.

About a month later the employer changed their mind and cancelled the computer conversion. Since this was the basis for the employees’ decision to resign, upon hearing this news, she told her employer that she was withdrawing her resignation notice. The employer waited about a month later to say that they were not accepting her withdrawal and said that she would be expected to leave on the date she originally set.

The court held that where a resignation is clear and unequivocal, as soon as it is accepted by the employer, then it cannot be withdrawn. Only where the employer has not accepted the resignation and has not detrimentally changed their position (for example by hiring a replacement) can the employee withdraw the resignation. In simple contract terms, the resignation is offered and then accepted and thus a contract is formed.

Query: Where the entire basis of the plaintiff’s resignation was the upcoming computer conversion, which was then cancelled by the employer, can it truly be said that her resignation was unequivocal?

Would it not be fairer to say that her resignation was conditional on the computer conversion going ahead, and when that precondition changed, she was free to withdraw her resignation?

What if the situation was reversed. The employer announces a layoff four months in the future and then a month later changes their mind and cancels the layoff. If an employee tried to say that the layoff could not be cancelled and demanded their full common law notice, surely the employer would argue that if the employee refused to work after the original layoff date that action would constitute either a quit or at least a complete failure to mitigate their damages.

I guess what is good for the goose is not always good for the gander.

Read More at Barry Fisher’s Employment Law Blog

To Read More Barry B. Fisher Posts Click Here