True resignation is voluntary
Canadian employees have no right to severance pay if they voluntarily left their job. This may seem unfair, but remember, the laws of resignation generally work in the employees favour.
If a resignation is tendered, employees can often withdraw it. Take for example Andrew Kieran. His employer, Ingram Micro proposed to accept his resignation after he indicated that he wouldn’t work for a rival employee expected to take over the company’s presidency. The Ontario Court of Appeal resoundingly concluded Kieran was free to change his mind, as long as Ingram hadn’t acted to its own detriment by relying on his statements.
Even an obvious indication of an intention to resign does not make it so. Susan Lelievre demanded a severance package, sent numerous emails announcing her last day of work, packed up her belongings and then left. Her employer, AIG Insurance, concluded she resigned. However, AIG made a fatal error: Relying on Lelievre’s statements that she was leaving, management did not step in to outline her options. Instead, the court ruled that by demanding the return of company property, it effectively terminated her employment. The golden rule for employers; employees should be given the benefit of time to consider their actions an asked to confirm their intentions in writing. Fortunately for Lelievre, she had never been given that option.
The law recognizes spontaneously made statements may not constitute a valid resignation. Neither should an employer seize upon the intemperate utterances of an emotionally charged employee. An employee who proclaims “I quit” in the heat of the moment may have done anything but.
To become effective a resignation does not require the use of that very word. The true test is whether the employee’s actions are consistent with someone voluntarily wishing to leave.
Currently within my practice, I have two clients in such cases. In one, the employee emphatically denies having uttered “I quit”. In the other, the client asserts the employer wrongly attributed to her a statement indicating she had resigned. In both, the employees came to work the next day as if nothing unusual occurred. The conclusion to their cases will be, I suspect, based not on the words my clients used, but on their actions and conduct at the time that those words were said- and afterwards. Nothing else ought to be dispositive.
Employees should also remember that resignations arising from an ultimatum could simply be a camouflaged termination. Used car salesman Bradley Gallagher never paid much attention to the calculation of his commission payments. In 2003 the dealership demanded he sign a shady commission plan or face termination. When Gallagher refused, the dealership said he had resigned. The court decided otherwise.
A true resignation is a voluntary action.
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Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal. He can be reached at firstname.lastname@example.org or visit www.toronto-employmentlawyer.com