What should you do if an employee asks to rescind his or her
If you really love that employee, you say "Great! Welcome
back." But if this isn't your favourite employee, you may
have an obligation to undo the resignation anyway. In order
to decide whether or not to allow them to withdraw the resignation,
there are a few factors that you should consider.
First, was the resignation valid? An employee who quits in the
heat of the moment or while under duress or emotional turmoil
should not be held to their resignation. Similarly,
expressing dissatisfaction and raising the idea of resigning, or
offering to resign if asked is not, on its own, sufficient to
create a valid resignation. An employee will likely be allowed to
revoke the offer to resign even after it is accepted, especially if
it was made in the heat of the moment.
The timing of the withdrawal is also important. If an employee
resigns in the heat of the moment and attempts to rescind in a
matter of hours or days, the courts are more likely to conclude
that the resignation was not valid. The more time between the
resignation and withdrawal, the more likely it is that the courts
will allow the withdrawal.
In order to determine if the resignation was valid, the courts
use the test: "Given all the circumstances and context in
which the resignation took place, would a reasonable person have
objectively thought that the employee meant to resign?"
That's lawyer-speak for "Did the employee mean
it?" So, for a resignation to be valid, there must be a
clear statement of resignation from the employee, preferably in
writing; or conduct that clearly shows an intent to resign such as
a verbal statement followed by removing personal items from the
Beyond ensuring a clear resignation, we recommend issuing a
written acceptance of the resignation. Employers who scheduled a
meeting the next day, or followed up with a phone call to clarify
the resignation are generally found not to have accepted a
resignation, thus leaving the door open for a retraction.
Before issuing an acceptance, employers must also consider other
factors that might be influencing the employee such as a potential
mental health issue or family situation causing unusual
stress. These factors should raise concerns that perhaps the
employee doesn't intend to resign but requires some additional
assistance such as a leave of absence or referral to the
company's Employee Assistance Provider.
In some cases, an employee may issue an ultimatum to their
employer, in which he or she states that if their conditions are
not met, then the employee will resign. If the employee does not
rescind the ultimatum after a cooling-off period, likely several
weeks, employers have successfully defended their issuance of a
written acceptance of resignation. While taking such action
would contain the risk of a wrongful dismissal claim, some courts
have found the resignation valid where the ultimatum was clear and
the employer had given the employee sufficient time to rescind.
If the offer of resignation is not valid, an employer must allow
an employee to rescind if the request to retract is brought
quickly, even if the offer of resignation has been accepted. In
some cases, an employer could refuse to allow an employee to
rescind if they can prove that they have relied on the
resignation to the employer's detriment. For example, if
an employer had to hire another employee to fill the role, they
would have expended both time for hiring and money to pay a
replacement because of the resignation of the employee,
demonstrating a detrimental reliance.
In summary, give upset employees time to cool down, request
employee resignations be submitted in writing, and respond with a
written acceptance if there are no suspected factors improperly
influencing the employee's decision. If an employee seeks to
rescind the resignation, look at how long it has been since the
resignation was issued and what steps have been taken in reliance
on the resignation. If there is no down-side in allowing the
employee to continue employment, then permitting the retraction is
likely the best course of action.
Labour and employment law had some interesting developments in 2016. What follows are a few highlights from the last year and an introduction to an issue that may attract significant attention in 2017.
Businesses and employers face exposure to a variety of claims for mismanagement or misuse of personal information by employees. Damages may depend on how sensitive the information is and how it is misused.
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