Resignation notice: Making it stick

Determining a valid resignation

Resignation notice: Making it stick
Colin Gibson

Question: If an employee says she is quitting, what does an employer need to do to make sure the resignation is binding so the organization can move forward?

Answer: To be legally binding, an employee’s resignation must be voluntary and satisfy two tests. First, the employee must take objective steps that are consistent with resignation, such as submitting a resignation letter or stating she is quitting. Second, the employee must have the subjective intention to resign.

It can sometimes be difficult for an employer to know whether an employee actually intended to resign, especially if the employee left the workplace suddenly in an emotional state or made comments that were ambiguous about her intentions.

Factors that may be relevant in determining whether or not a resignation was voluntary include: the employee’s length of service; the employee’s financial circumstances; what the employee said or did when she they the workplace; the circumstances leading to the employee’s departure; the employee’s emotional state when they left; whether the employee’s conduct was consistent with resignation (for example, clearing out their office, saying goodbye to co-workers, asking for a reference letter or submitting a resignation letter); and whether the employee asked to withdraw the resignation shortly after submitting it.

In Johal v. Simmons da Silva LLP, a long-service employee was told that a staff member with whom the employer knew she did not get along would be assigning her work. The next day, the employee packed up her personal effects, returned her building pass and left the building. There was some discrepancy about what was said at the time of the employee’s departure. Three days later, the employee returned to the office and tried to continue her employment. However, the employer refused to allow her to do so and took the position that she had resigned. 

The Ontario Superior Court of Justice found that, in the context of the whole situation, it was not reasonable for the employer to think the employee had resigned, given that she had been with the employer for 27 years, had no other job lined up, had never previously talked about resigning, had not provided any oral or written notice of resignation and had not said goodbye to colleagues. The court stated that while the employer did not owe a paternalistic duty to the employee, it did have an obligation on the particular facts of the case to do more to determine her true and unequivocal intention. The court commented: “… the circumstances here cried out for further inquiry by the defendant.”

When an employee states orally that she is quitting, it is best practice for the employer to ask the employee to confirm in writing that she is resigning and to specify the date when she will be leaving. If the employee leaves suddenly and/or appears to be in an emotional state, the employer should follow up promptly after the fact (as in the next working day) and make inquiries to confirm whether the employee actually intended to resign. If the employee says she intended to quit but will not put the decision in writing, the employer should write to the employee and confirm the resignation and its acceptance.

For more information see:

•  Johal v. Simmons da Silva LLP, 2016 ONSC 7835 (Ont. S.C.J.).

Colin G.M. Gibson is a partner with Harris and Company in Vancouver. He can be reached at (604) 891-2212 or [email protected]

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