Q&A is a recurring series on the Vey Willetts LLP Blog. The aim is to provide quick answers to questions we commonly encounter in our day-to-day practice of employment law. In this edition, we focus on resignations.
Q. What constitutes a “resignation” from employment?
A. A resignation from employment occurs when an employee communicates their clear, and unequivocal, intention to voluntarily end the employment relationship, whether immediately or at some fixed date in the future.
Q. How do courts determine whether a resignation is valid?
A. Courts pay special attention to ensure that any alleged resignation from employment has been unambiguously communicated, given voluntarily, and made on an unequivocal basis. To determine whether these criteria are meet, resignations are assessed contextually, having regard for the surrounding circumstances in which the employee acted.
For the clarity standard, consider an employee who yells “I am done with this place!” and storms out of an office mid-meeting. Their employer would be wise to avoid assuming this single statement constitutes a resignation. Such action may simply be reflective of a worker letting off steam. As such, when there is any doubt as to whether an employee aims to resign, employers are recommended to follow-up and seek clarification of the worker’s true intent (and request confirmation in writing).
To be valid, resignations must also be voluntary in nature. Thus, in the somewhat classic scenario where an employee is told they can either “resign” or be fired, the worker may have a strong argument that any subsequent resignation would be invalid, on the basis that it was in effect coerced (see here for one such case). Whether employees are suffering any health issues at the time of issuing a resignation may also be examined when assessing whether their actions can truly be said to be voluntary.
Finally, an employee’s resignation may be subject to conditions or underlying assumptions. For example, in one case an employee communicated her intention to retire to avoid having to be trained, and use, new systems and technologies that were planned to be introduced at the workplace. When the employer later abandoned these proposed new processes, the employee was able to successfully withdraw her resignation as the underlying conditions in which it had been issued no longer applied.
Q. Can an otherwise valid resignation later be rescinded?
A. It is sometimes possible for an employee to later rescind a validly made resignation. In such cases, consideration has traditionally been given to two questions: 1) whether the employer has already accepted the employee’s resignation; and 2) whether the employer has acted upon the employee’s resignation to its detriment.
Readers should note, however, that the law regarding rescindment of resignations is shifting. Recent decisions (see here and here) from the Ontario Superior Court of Justice suggest that detrimental reliance is no longer as important a factor when assessing whether a resignation can be withdrawn. In other words, where an employer has accepted a worker’s valid resignation, that may be the end of the story.
Q. How much notice of resignation does an employee need to provide?
A. Departing employees are required to provide reasonable notice of resignation. What qualifies as “reasonable” will depend on the circumstances. Lower-level employees, who lack any key roles or functions in an organization, will typically be required to provide only nominal advance notice. The commonly held idea of giving “two weeks’ notice” will often suffice for such workers. For more senior, fiduciary, or specialized employees, greater amounts of notice may be required.
In general, a departing employee should always look to their employment contract (if one exists) for guidance on the amount of notice to be provided. In addition, we frequently advise workers to plan their exit on a “do no harm basis”. In other words, workers should consider how their resignation will impact their employer’s operations and seek to provide sufficient advance notice to minimize any possible disruption.
While rarely litigated in Canada, it is possible for employers to sue their former workers for wrongful resignation. This can occur when an employee fails to give sufficient advance notice of resignation and their employer suffers harm as a result. For more information on wrongful resignation, read our past blog articles here and here.
*This Q&A article is provided solely for informational purposes. It is not specific legal advice. Should you wish to receive specific legal advice regarding your particular circumstances, please contact us directly.
Vey Willetts LLP is an Ottawa-based employment and labour law boutique that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in the National Capital Region and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca.