‘I quit … oh wait, I didn’t mean it!’

March 19, 2017 - by: Stefan Kimpton 0 COMMENTS

by Stefan Kimpton

Employers don’t often enough think about the consequences of a heat-of-the-moment resignation. It is generally assumed that when an employee says “I quit” or storms out of the workplace, the employment relationship has come to an end and the employer owes no further obligations to the employee.

Think again. As a recent decision of the Ontario Superior Court of Justice – Johal v Simmons da Silva LLP, 2016 ONSC 7835 – reminds us, employers ought to exercise caution before accepting a resignation from an employee who quits suddenly following an emotional outburst at work. For the resignation to be valid, it must be clear and unequivocal. Most importantly, it must reflect the employee’s intention to resign.

Facts

The employee, Rajinder Johal, worked as a senior family law clerk at Simmons da Silva LLP, a law firm, for 27 years. On June 3, 2015, a partner of the firm called her in for a meeting. During this meeting, she was informed of certain changes that were to be made to the family law group.

At the time, the family law group consisted of four lawyers, three senior law clerks, including Johal, and two junior law clerks. Johal was told that one of the lawyers was resigning and that one of the senior law clerks would soon be returning to work from a parental leave. According to Johal, she was also told that she would now be reporting to this other senior law clerk and that her work would be assigned to her by this other law clerk. Suffice it to say, Johal was not at all impressed.

The next morning, (June 4, 2015) Johal removed all of her personal belongings from the office. She went to see the partner who had spoken with her the day prior, gave him her security pass, and walked out of the office. She did not return to work on Friday, June 5, 2015, or on Monday, June 8, 2015. She did not contact any partner of the firm or the human resources department.

Soon thereafter, the employer mailed a letter to Johal accepting her resignation and confirming that it was effective as of June 8, 2015, at 5 p.m.

On June 9, 2015, Johal wrote an email to her employer asking to withdraw her notice of resignation. The employer refused on the basis that it had relied on her resignation. Specifically, the employer said they had already (1) notified a probationary junior law clerk that her employment was secure, (2) advised clients about Johal’s departure, and (3) advised the other staff members that she had resigned.

The employer was concerned that rehiring Johal would encourage other employees of the firm to resign without notice, as they would not be subject to any repercussions for such actions.

Applicable law

It is now well-established law that a resignation must be clear and unequivocal to be valid. The employee, by his or her words and actions, must reflect an intention to resign. Whether words or actions equate to resignation must be viewed contextually. The surrounding circumstances are, of course, relevant to help determine whether a reasonable person, viewing the matter objectively, would have understood that the employee intended to resign.

In Johal, the court considered several factors surrounding Johal’s alleged resignation:

  • She was 62 years old;
  • She had worked for her employer for 27 years;
  • She had never before threatened to resign;
  • She did not provide written notice of resignation;
  • She did not state verbally that she was quitting or resigning (she merely walked out);
  • Her resignation was out of character;
  • Her employer did not attempt to discuss the matter further with her;
  • No one attempted to contact her following her departure; and
  • It occurred suddenly after a meeting about important changes in the workplace.

In considering the totality of the circumstances, the court concluded that Johal had not voluntarily resigned from her employment. Instead, she needed a few days to consider the changes that were taking place and what they meant for her going forward.

Given the context, Johal’s employer was required to take additional steps following her sudden departure to determine her true and unequivocal intention. The court, therefore, found that she was wrongfully dismissed and, failing an agreement of the parties, ordered a trial on the issue of the quantum of damages.

Takeaway for employers

Employers should always ensure that a resignation is clear and unequivocal, especially if it occurs “in the heat of the moment.” An employer who jumps the gun and accepts a notice of resignation without considering the surrounding circumstances risks significant exposure for wrongful dismissal.

When in doubt, provide the employee with sufficient time to “cool down” and then seek to clarify the employee’s intention before processing the resignation.

About Stefan Kimpton:
Stefan Kimpton is a member of the Labour, Employment & Human Rights and Litigation practice groups in Fasken Martineau's Ottawa office. Stefan advises private and public sector employers on a wide range of employment and labour law issues, with a focus on employment litigation matters. He also has experience in advising clients in commercial and construction litigation matters. Stefan graduated from the Common Law in French program at the University of Ottawa and practices law in both French and English.
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