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Jul 20, 2010

‘I quit – maybe not’

    

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

Sometimes it may seem like an employee doesn’t want her job. And sometimes it may seem like an employee has abandoned her job. However, as has been demonstrated numerous times in the realm of employment law, employers should never assume an employee has quit.

A fundamental principle that has come out in various court decisions is that an employer must have clear and unequivocal evidence an employee has resigned. Courts will lean, quite far, in favour of the employee to ensure she isn’t being pushed out.

That’s because employment is generally very important, both financially and psychologically, to people and it’s unlikely they will give this up in moments of emotional turmoil. Words or actions in the heat of the moment are often different once cooler and more thoughtful heads prevail. In many cases, all it requires is common sense to see it’s unlikely a resignation has taken place.

A Toronto employer was recently ordered to pay $20,000 to a former employee because it ended her employment over a leave the woman was taking in order to have an operation and medical treatment. The employee was diagnosed with breast cancer and said she would need to take time off and gave her last date of work as the day before the operation. However, the employer took the written notice of her leave plans as a resignation and terminated her employment as of her stated last day of work.

Unfortunately for the employer, nowhere in the letter or in her verbal communications did the employee ever say she was resigning. She maintained she was taking a temporary leave but, since she didn’t have a specific return date, the employer took this as an end to her employment. The fact she was taking the leave for cancer treatment made the optics that much worse for the employer.

While a little common sense — and perhaps some compassion — would have helped the employer realize the employee wasn’t resigning, there have been other cases where employers might not be at fault for assuming a resignation. Employees have stormed out of the office in a huff, cleared out their belongings, or have even said, “I quit.”

However, in most instances like these, the employer can’t make the assumption it’s an actual resignation. Generally, without a written notice of resignation, the employee has to be given a chance to think about it and confirm the resignation. In the alternative, the employer can terminate the employment but will likely have to provide reasonable notice as per normal dismissals without cause.

Should an employer be allowed to accept a non-written resignation if it’s adamant enough, or should it always have to confirm or wait and see? If an employee specifically states that they quit and leaves the workplace, shouldn’t that be enough?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

    
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