Employee Resignation
An employee’s decision to “resign” from their employment is the complete opposite of a wrongful dismissal. Unlike in a typical termination of employment, a resignation is triggered by the employee’s own decision. As a result, the employee is disentitled from receiving a financial severance package. However, there are important requirements that must be met to make a resignation formal and legally binding, including the following:
- employee must provide prior notice of their last day of work (i.e., effective resignation date); and
- the decision to resign must be voluntary
In order to be effective, a resignation must be “clear and unequivocal”. This determination is based on a fact-specific (contextual) assessment by applying an objective and subjective test (i.e., whether the employee’s words or actions, viewed objectively by a reasonable person, support a conclusion that the employee intended to resign).
Furthermore, the employee’s resignation must be voluntary and not obtained under coercion or duress (i.e., in the “heat of the moment”). Thus, a demand by an employer for the employee to resign, or ultimatum/choice for the employee to resign or being fired, will not be found to be a resignation. In other words, an employer cannot force an employee to resign. In fact, an employer who forces an employee to resign the employee will be deemed to have fired the employee, entitling the employee to a severance package for wrongful dismissal. Similarly, a court would be unlikely to find a valid resignation if it is made under significant stress, whether caused by the employee’s own health issues or due to the employee’s particular sensitivity, all of which could suggest the resignation was not truly voluntary.
On the other hand, an employee who invites his own dismissal by giving an employer an ultimatum, such as “it’s either him or me,” may be treated as having resigned. Similarly, in situations where an employee quits her employment in protest of a significant change to the terms of their employment (i.e., constructive dismissal) may be treated as having voluntarily resigned, if the court ultimately determines there was, in fact, constructive dismissal.
If an employee provides prior notice of resignation, but the employer asks the employee to leave before he or she has served out the notice period, the employer is generally required to pay the employee damages in lieu of notice.
Can an Employee Change their Mind or Withdraw a Resignation?
Yes – generally speaking, an employee may resile from a resignation, as long as the employer has not relied on it to its detriment (i.e., spent money on recruitment and training and hired their replacement). However, even where an employer has “accepted” an otherwise unequivocal resignation, there are circumstances where an employer may have to allow the employee to withdraw their resignation and keep their job – a sort of “cooling off” period to permit the employee time to reconsider his or her resignation, and to make further inquiries and act with consideration in response to the resignation. The reason for this is an employer’s overarching duty of “good faith and fair dealing“.
What Happens if an Employee Does Not Provide Proper Notice of Resignation: Wrongful Resignation
As noted above, an employee is required to provide sufficient prior notice of resignation (just like an employer has to provide an employee with reasonable notice of termination). The purpose is to give an employer enough time to hire and train a replacement. However, if an employee fails to provide adequate notice of resignation, an employer may be able to seek damages (compensation) for wrongful resignation.
How much notice of resignation (or appropriate notice period) is required will depend on the specific facts of each case, including:
- is there an employment contract stipulating the amount of resignation notice required?
- the employee’s length of service
- the position, salary, duties and responsibilities
- the time it would reasonably take the employer to hire, train and replace the employee, or otherwise take steps to minimize the disruption to its business
Contrary to a common misconception, unless clearly stated in an employment contract, there is no such thing as an employee’s requirement to provide an employee “two weeks’ notice of resignation” (in many cases, this may not be adequate). In a wrongful resignation case, a court will award an employer damages to cover any proven losses suffered by the employer because of the employee’s failure to provide reasonable notice of resignation.
Contact Our Ontario Wrongful Dismissal Lawyer
If you are an employer and believe an employee has abandoned their employment, or an employee who has been accused of resigning from your employment, our experienced workplace lawyer at Bune Law can help. Contact us by phone 647-822-5492 or fill out the contact form to to the side. We would be happy to assist in your employment law matter as quickly as possible.
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