Canada: Employee Resignations: Can They Be Rescinded By The Employee?

Last Updated: April 13 2018
Article by Marisa Cruickshank

"THAT'S IT! I QUIT!" ("Actually, maybe not...")

It's a common scene in the movies: a disgruntled employee tells off the boss and then triumphantly departs the office, throwing papers in the air, vowing never to return. (If you can't recall one, just google, "top 20 best job quitting movie scenes" and you'll find results, with video links.) Of course, not all resignations play out with such dramatic flair. In some cases, an employer may be genuinely confused about whether an employee actually intended to resign. In other cases, the employer may take the position that the employee voluntarily quit, while the employee may maintain that he or she was fired without notice. Whatever the circumstances, it is important for employers to be aware of the law regarding resignations, including when employees may be entitled to rescind them.

The general rule is that a voluntary resignation by an employee must be clear and unequivocal to be effective. In Beggs v. Westport Foods Ltd., 2011 BCCA 76, the BC Court of Appeal stated that a finding of resignation requires the application of both a subjective and objective test: whether the employee intended to resign and whether the employee's words and acts, objectively viewed, support a finding that he or she resigned. The objective portion of the test focuses on what a "reasonable employer" would have thought about the employee's intentions, based on what the employee has done or said. The subjective aspect of the test takes into account the employee's state of mind, ambiguities in relation to the conduct which is alleged to constitute "resignation" and, to a certain degree, the employee's timely retraction or attempted retraction of the "resignation".

Generally, the more impulsive or emotionally charged a resignation is, the greater the onus on the employer not to accept the resignation without proper deliberation. For example, in Haftbaradaran v. St. Hubertus Estate Winery, 2011 BCSC 1424, within the context of an emotionally charged meeting (which followed months of building resentment by the employee and subjective feelings of being undervalued), the plaintiff – a winemaker at the employer's winery – took his keys to the wine cellar out of his pocket, laid them on his employer's desk, and essentially invited his employer to fire him.

The general rule is that a voluntary resignation by an employee must be clear and unequivocal to be effective

The employer told the employee to get out of his office, to which the employee responded, "Good luck making wine". The employee subsequently gathered his personal effects from his space in the wine cellar and left the property. The court concluded that the plaintiff's behavior in the meeting was part of a strategy to induce the employer to be more effusive in its praise of the plaintiff, rather than an unequivocal resignation. The court noted that while leaving the property showed extremely poor judgment on the plaintiff's part, a reasonable observer would conclude that this action was just another element of the plaintiff's strategy. As a result, the court concluded that the plaintiff's words and actions did not amount to an unequivocal expression of resignation from his employment.

Similarly, in Upcott v. Savaria Concord Lifts Inc., 2009 CanLii 41348 (Ont S.C.), during a meeting with the employer's Director of HR to address an earlier altercation between the plaintiff and another employee (Leanne), the plaintiff became fed up, either said, "I'm done" or "I'm out here", and threw his keys in the Director's in-box. The plaintiff subsequently encountered the employer's VP of Operations and stated, "I'm done; please call me when they solve the problem with Leanne."

The plaintiff then went to this office, took his personal items off his desk and went to his car. He took two trips from his office to the car. He passed the receptionist on his second trip out and told her he was "done" and would call her later. Within half an hour, the plaintiff's emails had been deleted from his blackberry, which he understood to be part of the termination process. He later spoke to the Director of HR and the VP of Operations on the phone, during which time they advised him that they were taking his conduct as a resignation.

The court considered whether the employee was justified in accepting the plaintiff's apparent resignation or whether it should have allowed him to come back to work. The court acknowledged that the employee, in a foolish fit of anger, had made it clear to the employer on the morning of the altercation and for a short time after that he truly wished to leave his employment. However, the court considered the fact that the plaintiff's workload had been increased that morning, an important project had been delayed, he'd had an argument with a co-worker and the co-worker had subsequently complained about him. Ultimately, the court concluded that a reasonable person, viewing the matter objectively, would have understood that the plaintiff was having a juvenile fit of anger and would, very quickly after leaving the office, have retracted the resignation.

Even in cases where consideration of both the subjective and objective components supports a conclusion that the employee intended to quit, the courts give employees some leeway in retracting resignations. Generally, employees must be permitted to rescind a resignation unless the employer has acted on the resignation to its detriment: Tolman v. Germatic Company, 1986 CanLii 1212 (BCCA). For example, if the employer has already hired someone new to fill a position, it may be able to maintain its acceptance of the resignation. Otherwise, and particularly in emotionally charged circumstances, the courts identify that the most reasonable and fair response might be to provide some time for the parties to cool off, gather their thoughts and re-consider the situation: Bru v. AGM Enterprises Inc., 2008 BCSC 1680.

If you aren't sure whether an employee has resigned or you suspect that an employee may have acted in the heat of the moment, take some time to consider the entirety of the circumstances. If you are aware of factors that may have led the employee to impulsively resign, such as workplace stress or a workplace altercation, give the employee some time to cool off. After a cooling off period, we usually recommend that you attempt to confirm with the employee in writing whether or not he or she intended to resign. As the case law makes clear, you don't want to be seen to be forcing a resignation upon an employee in circumstances where there may be no subjective intention to do so. Moreover, if an employee comes back within a reasonable period of time and asks to rescind his or her resignation, consider whether you have already acted on the resignation or whether you would reasonably be expected to allow the employee to return to the workplace.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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