If an employee quits and you wish to move ahead with it, it is best to confirm, in writing, that you have accepted that offer
By Stuart Rudner and Shaun Bernstein
We all say things that we don’t mean. Sometimes we are angry, and our emotions get the better of us. Other times, after some deep contemplation, we realize that something we said does not reflect what we really want.
What happens when what we said is along the lines of “I quit,” and then we wish to rewind the clock and take it back? For many years, the law seemed to hold one view on this issue, but recent cases have shed further light on when an employee can effectively undo her resignation.
In short, an employee may be able to take back a resignation that was made without forethought, provided that she has an immediate change of heart and quickly lets the employer know. However, if an employee clearly and deliberately gives notice, and the employer just as clearly accepts it, it may well be too late to undo.
Sometimes in anger...
In Avalon Ford Sales (1996) Limited v Evans, 2017 NLCA 9, Ralph Evans was a successful dealership manager who made a mistake with inventory control. During a heated exchange with his management, Evans turned in his keys and his cellphone and said the words “I’m done” before leaving. After departing, he went to his doctor, who diagnosed Evans with an acute stress condition. Evans tried multiple times to speak with his employer, and when they finally met four days later, his employer ripped up the medical documentation that he presented and confirmed that Evans’ employment was over.
The Newfoundland Court of Appeal held that Avalon had, in fact, terminated Evans’ employment. After analyzing the facts of the situation, particularly Evans’ medical circumstances, the court ruled that there was no way Evans’ actions could be taken as a voluntary resignation. As a result, he was awarded 12 months’ pay in lieu of notice.
The Court of Appeal, when analyzing the parties positions, determined that an “employee’s state of mind is a relevant consideration in determining whether or not the objective circumstances reflect a genuine intention to resign.” In other words, an employee who truly does not mean to resign, as was the case with Evans, may not be found to have done so after all if his actions show clearly that his intentions were otherwise. He may be able to avoid the consequences of his hasty resignation.
Previously, most courts had held that an employee could only take back his resignation if the employer had not acted on it to his detriment. In other words, so long as the employer had not begun making efforts to restructure, then an employee would be entitled to change his mind.
However, the court in Evans added one defining element to the test: An employee could not take back a resignation that the employer had not relied upon to his detriment if the resignation was already accepted by the employer. If the employee makes a straightforward offer to resign, and the employer subsequently accepts it, then a deal has been struck and the employee cannot avoid the consequences.
...and sometimes not
In the recent case of English v. Manulife Financial Corporation, 2018 ONSC 5135, Elizabeth English was a senior customer relations representative who had worked for Manulife for 12 years. In September 2016, English gave her manager a note declaring her intention to retire at the end of the year. English was 66 at the time, and her employer was preparing to bring in a new computer system. This was what drove English to decide to retire, although her note did not indicate that. Her manager asked English if she was sure and English interpreted this to mean that she had an open invitation to change her mind.
When she learned a few weeks later that the computer systems were no longer being changed over, English asked if she could take back her resignation. Her manager did not confirm or deny the request, and so English kept working. However, in November, her manager informed her that Manulife was already making plans to move on, and English ceased working for Manulife on Dec. 12.
In analyzing the facts, the court used the above test from Avalon, but ruled that despite Manulife’s silence when English attempted to withdraw her resignation, it had already accepted her offer. English made a clear offer to resign, and Manulife accepted, making for a binding contract.
The court held that “the defendant had accepted the plaintiff’s notice of retirement and was under no obligation to allow the plaintiff to rescind or resile from her notice.” The court ruled that English was not terminated, but had resigned, and no further money was owed to her.
For employers with an employee’s resignation on their hands, the element of offer and acceptance is key. If an employee offers her resignation, and you wish to move ahead with it, it is best to confirm, in writing, that you have accepted that offer.
However, if an employee has resigned in the middle of an emotional outburst, especially one that is entirely out of character, it may be advisable to take a pause and let the dust settle and wait for cooler heads to prevail.
Shaun Bernstein is an associate at Rudner Law in Toronto.