I (Un)Quit!

Anna Cook, Partner
Cox & Palmer

Can An Employee “Take Back” Their Resignation?

We’ve all heard about those memorable resignation stories; those dramatic exits performed by even more dramatic employees. Heck, many of us have probably dreamt of doing it ourselves. Thankfully, the rage-filled moment passed, sanity took its rightful place, and we still had a job the next day. Phewf!

Whether an employee chooses to go out in style, or take the more traditional (i.e.: civil) route, it’s important for employers to be proactive in the situation and ensure they act within the confines of the law. It’s possible that the employee has the ability to rescind their resignation, and certain steps taken by you, the employer, could be viewed by the courts as a termination without cause. That’s an expensive proposition.

It’s helpful to understand the climate of employment law in Canada: Employee-employer relations often become modern day David and Goliath stories. As well, Courts have acknowledged that our work is a huge part of our lives and who we are as individuals.   As such, when cases involving questionable resignations are brought before them, they look carefully to make sure there is nothing surreptitious going on and that the employee truly quit… and meant it.

A Proper Resignation

To be effective or reliable, an employee resignation must be an expression of the true wishes of the employee. A proper resignation is a fully thought out and reasoned act. A court generally will not uphold a resignation that was given in haste when the employee was acting rashly, or was emotionally troubled. This means you cannot rely on the spur of the moment “I’m done!” followed by a hasty exit as a proper resignation. Or the voicemail from 4 A.M. on a Saturday night that screams: “Take this job and shove it!” In such cases, employers are advised to allow for a cooling off period. This should be followed by a meeting with the individual to ensure they’re certain of their actions. Even if it pains you to do so, offer them the chance to rescind their resignation. The courts will have no problem doing so after the fact.

It is equally problematic to present an employee with a “resign or be fired” ultimatum. Typically, a resignation in such circumstances will not be interpreted as an expression of the employee’s real intentions.

Failure to obtain a set date for departure is also problematic. A leading case in this area found that an employee that states they’ll leave “when the time comes” has not tendered a proper resignation.

Get it in Writing

It is recommended to get the resignation, including the date of departure, in writing. That said, do not pressure the employee to put it in writing once they’ve made a statement; simply ask them to provide you with a letter or e-mail that they’ve written and leave it at that. Be careful not to do anything that could be interpreted as pressuring the employee, for instance writing the letter and asking for their signature.

Be Proactive

The courts look favourably on employers that have moved forward based on the resignation of an employee. Once an employee has resigned, and you are satisfied that the resignation is valid, begin interviewing replacements. If you are considering an internal promotion to fill the void, start speaking to the prospective replacement about the position as soon as possible. Once you are satisfied with the replacement, tell them that they are hired and will be taking over once the resigning employee has left. Arrange for the departing employee to impart corporate knowledge to the replacement during the notice period. The more proactive steps you take to fill the gap, the less likely a court will be to accept an attempt by an employee to rescind their resignation. Absent such steps, some courts have been more willing to accept an employee’s rescission on the basis of “No harm, no foul”.

But Be Careful

You might be tempted to take actions which will hurt your cause. Posting notices or sending e-mails when the validity of the resignation is in question could lead a court to the conclusion that you “squeezed out” the employee. Attempting to placate an employee who wishes to rescind with the offer of “lesser” employment could have a similar effect. Don’t make the workplace unbearable for the employee during the notice period. Doing these types of things may be considered constructive dismissal and could leave you on the hook for months or years of pay in lieu of notice.

In most cases, the resignation of an employee is usually to the chagrin of the affected employer and the employer is happy to see a resignation rescinded. But in situations when the resigning employee was “less than ideal”, remember to keep a level head.  Most of all, get legal advice. Nothing ruins a good party like a former employee showing up with a bill for twelve months’ pay.

This Cox & Palmer article is intended to provide information of a general nature only and not legal advice. Individuals are advised to obtain legal advice when it comes to their specific circumstances.

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