Employment & Labour

Cases demonstrate the nuances of employee resignations

By AdvocateDaily.com Staff

A resignation is not always as decisive as it looks, says Toronto employment lawyer Jordan Rodney.

In a recent decision, the Ontario Court of Appeal ruled a woman was wrongfully dismissed when her employer refused to allow her to rescind her resignation following a change of heart.

Rodney, the founder of Rodney Employment Law, tells AdvocateDaily.com it won’t be the last time the issue comes before the courts.

“Resignation is something that comes up all the time in an employment law practice aimed at employers,” he says. “There really is no textbook answer because, like most things in employment law, it will be decided on a case-by-case basis, and is largely dependent on the circumstances.”

Rodney says an enforceable resignation will have two key features: intent to resign, and a corresponding action that supports that intention.

“If someone is having a fight with their manager, and they storm off saying, ‘I’m out of here,’ many companies will think that’s a resignation, but it’s not,” he says. “If someone has written a considered and thought-out letter explaining why they’re leaving, that will go further towards supporting a clear and unequivocal resignation than an emotional spur of the moment departure.”

The appeal court case concerned a 64-year-old manager who gave her company — a major insurer — notice of early retirement when it announced a plan to switch to a computer system that she did not want to train on so late in her career.

However, she moved to rescind the notice a few weeks later when the company announced it would not make the transition to the new system after all. But the company refused to have her back, taking the position that she had irrevocably retired.

An Ontario Superior Court judge dismissed the woman’s wrongful dismissal claim summarily after finding her resignation was “clear and unequivocal,” but a three-judge panel of the province’s top court disagreed, noting the employee’s supervisor had told her she could change her mind when she handed in her notice.

“Her resignation notice was equivocal given the circumstances in which she presented it to [her employer], and she was entitled to withdraw it,” the appeal court ruling reads, ordering the company to pay her damages in lieu of 12-months’ notice, or around $130,000.

Rodney says another recent appeal court case involving a dental hygienist offers further guidance on the employment relationship following a resignation. This time the ruling went against the employee, who initially resigned her position in 2005 after 12 years of employment to move to a new city, only to cancel the decision within her three-month notice period.

However, the dental practice only agreed to take the hygienist back on the condition that she sign a new employment agreement limiting her entitlements on termination.

When she was finally dismissed in 2012, the hygienist sued for constructive dismissal damages recognizing her full service. However, the appeal court ruled the woman must be held to the 2005 agreement because of the effectiveness of her resignation.

“The difference in the dental case is in the clarity of the resignation. The intention to resign was there, as was the corresponding action to support that intention,” Rodney says.

Employers must tread carefully when it comes to a resignation, especially if there are concerns over the mental health of the subject employee, he says.

“There have been cases where someone has resigned, but they come back a couple of months later claiming they were not in the mental state to make that decision,” Rodney says.

In borderline cases, he says employers seeking to rely on an apparent resignation can boost their case by proactively tying up loose ends.

“A best practice is to provide acceptance of the resignation to the employee, either by email or letter,” Rodney says. “It’s like putting a little bow on things and removing any uncertainty.”

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