I suspect that most employers struggle occasionally with the question of whether an employee has resigned from employment. I know that I am often called on to provide advice on this subject.
The problem is that not all employees quit in a reliable fashion. Ideally, the employee will provide a letter of resignation and then, on the designated day, will cease to provide employment services. In that instance, there should be no difficulty concluding a voluntary resignation has occurred.
Many times, however, a so-called resignation is the result of a momentary, emotional blowup. The employee, in a rush of anger, declares, “That’s it, I’m out of here!” (or something similar) and storms out of the workplace. The employer, eager to take advantage of the situation, jumps on the opportunity to accept the resignation. Then the employee returns (after having cooled off) and declares he never had any actual intention of quitting.
This is when lawyers and judges are called upon to assist in determining the impact of what happened. This situation occurs frequently enough that a legal doctrine has developed to address the dilemma.
The B.C. Supreme Court recently dealt with this in the circumstance of an employee who left work after issues arose with her executive director. The employee removed all of her personal effects from the workplace and sent a letter to their Board of Directors alleging various shortcomings on the part of her boss.
At a meeting with the Board of Directors, the employee angrily confirmed her intention to depart and that she had no desire to be associated with the employer any longer. But, when an opportunity was later provided to the employee to confirm her resignation in writing, she refused to do so.
Instead, the employee claimed she had no intention of resigning, would be using up accrued sick time, and provided no indication of when she would return to her duties. The employer then communicated to her that it was accepting her resignation.
The employee took the predictable action, suing the employer for wrongful dismissal. The Court had to determine whether, in fact, the employee had voluntarily resigned from her employment.
The Court stated that the test is whether, in all the circumstances, a reasonable person would conclude by the employee’s statements that she had resigned. The evidence was that the Board of Directors had heard the employee unequivocally state her resignation. This, however, had come at a moment when the employee was extremely angry and upset so the Court went on to consider the surrounding circumstances.
The Court found that, despite her later attempt to cast her actions in another light, she had clearly indicated an intention to resign. She had refused to provide medical reasons for her continued absence, had requested the payout of accumulated overtime hours, and had requested a letter of reference. In addition, she had removed all her personal effects from the office.
So, while the employee repeatedly stated she had no intention to resign, her actions betrayed that position. In all, a reasonable person would have concluded that the employee had resigned. As such, her action for wrongful dismissal was dismissed.
Employers would do well to look at the issue using a two-stage analysis. First, has the employee used words which, when viewed objectively, indicate an intention to resign? The words don’t have to be as clear as “I quit” but should have a similar effect.
Second, have the employee’s subsequent actions indicated a subjective intention on her part to resign? If so, then initial words will have been confirmed and the two-stage analysis should be complete.
Watch out, however, for the employee who quickly recants, indicating an intention to remain in employment. That is often the case after the emotional blowup. In those circumstances, judges can be expected to conclude the incident was little more than a momentary, emotional lapse and will give the benefit of the doubt to the employee.
These items are intended for general informational purposes only and should not be construed or relied upon as legal advice. The legal issues addressed in these items are subject to changes in the applicable law. You should always seek competent legal advice concerning any specific issues affecting you or your business.
Also read:
- Onerous Terms Not Necessarily Unconscionable
- When Terminating for Cause, Measure Twice and Cut Once
- Severance packages: What’s Fair?
