Encountering difficulty confirming when an employee quits?
Question: If an employee leaves work saying he quits and the employer’s first couple of attempts to confirm the resignation are ignored, how long must the employer wait until it can be considered a resignation?
Answer: To be effective in law, an employee’s resignation must be clear and unequivocal. Resignation has both objective and subjective components, such as whether the employee intended to quit and whether an objective observer would come to that conclusion.
The B.C. Court of Appeal in Beggs v. Westport Foods Ltd. endorsed the following test set out by David Harris in his textbook on wrongful dismissal:
“The test for voluntary resignation (as opposed to dismissal) is objective, focusing on the perceptions of a “reasonable employer” of the intentions of the employee based on what the employee actually says or does or, in some cases, on what he or she fails to say or do. Among the relevant circumstances are the employee’s state of mind, any ambiguities in relation to the conduct which is alleged to constitute ‘resignation’ and, to a certain degree, the employee’s timely retraction, or attempted retraction, of his or her ‘resignation.’”
The same requirement of a subjective intention to resign accompanied by objective conduct consistent with resignation is also required by arbitrators.
In most cases, employees resign without issue by providing the employer with a letter containing advance notice of resignation. But the situation may be different if, for example, an employee responds to a provocative workplace incident by saying “I quit!” and storming out the door. In such circumstances, a court or arbitrator may find the employee has not voluntarily resigned, especially if she seeks to return to work after cooling down.
To avoid ambiguity, it is wise for an employer to get confirmation of an employee’s resignation in writing. Ideally, this will be done by asking the employee to submit a letter of resignation. If no such letter is forthcoming, but the employee has nevertheless stated an intention to resign, the employer should provide the employee with a letter confirming the resignation and the date on which it will take effect.
If an employee leaves the workplace in an emotional state in circumstances where it is unclear whether or not she has resigned, it is prudent for the employer to attempt to contact the employee to confirm the resignation. If the employee fails to respond, the employer should send the employee a letter either confirming the resignation (if the employee stated before leaving she was quitting) or stating that if the employee does not return to work by a specified date, the employer will have no alternative but to treat the employee’s action as an abandonment of employment.
For more information see:
•Beggs v. Westport Foods Ltd., 2011 CarswellBC 283 (B.C. C.A.).
