Usually, an employee’s resignation is clear and is not normally subject to interpretation. It can be as simple as “I’ve decided to stay home for the next few years to take care of my family”, or simply “this job isn’t working for me”. In situations such as these, the conversation won’t likely leave room for ambiguity, however if this conversation is not followed by a written letter of resignation that is when the situation can get sticky!
Employees normally give their employers written notice that they are quitting their jobs. “Notice” in this case is the amount of time between when the employee tells the employer in writing that he/she is leaving his/her job and the time that he/she actually leaves.
Duty of the Employer When Notice Is Given
When an employee has given the employer proper notice that he/she is quitting, the employer:
- may not change the employee’s rate of pay or any other condition of employment, such as hours of work or benefits
- must pay the employee all the wages he/she is entitled to receive at the end of the notice period
A Resignation Must Be “Clear and Unequivocal”
To be effective, a resignation must be “clear and unequivocal” and requires both the employee’s intention to resign and the employee’s written words and actions, objectively viewed, to support a finding of resignation.
A Resignation Must Be Voluntary
A resignation cannot be obtained through pressure, coercion or duress. Many employees have the belief that the optics of a resignation is better than those of a termination, and if given the option, would rather resign. While this may or may not be true, from a contractual perspective, it makes little difference. If an employer demands that an employee resign, or presents the choice of either resigning or being fired, the resignation would not be valid as it is not being offered voluntarily.
Similar to resignation is the principle of job abandonment. In Canada, it is of course an implied term of every employment contract that an employee will attend work and perform the duties that are expected of them. This duty is only waived if the employee is excused from work by the employer, is entitled to leave under law (for example, bereavement leave, parental leave), or is unable to report to work (for example, due to injury or illness).
Abandonment occurs when the employee breaks this implied term without an appropriate explanation. The test for abandonment is: the facts when viewed objectively by a reasonable person, must unequivocally demonstrate that the employee no longer has the intention of being bound by the employment contract.
In most cases, resignations are clear, unequivocal and voluntary. The employee clearly expresses verbally and in writing that he or she is moving on, and the employer accepts. When there are issues or ambiguities in a resignation, it is often associated with a breakdown in communication or conflict between the employee and the employer.
Employers should be extra diligent in trying to decipher the employee’s intentions especially in circumstances where ambiguity exists. At its core, the question will be whether a reasonable person, objectively considering the relevant circumstances, would determine that the employee unequivocally resigned.
Finally, employers need to be sensitive to circumstances where an employee is resigning in an environment of conflict. If an employee has the perception that the employer has created an intolerable working environment or has unilaterally and fundamentally breached the employment contract, he or she may ultimately decide to pursue a claim of constructive dismissal.
*Excerpts from an article written on September 24, 2014, by David M. Brown entitled “Did He Just Quit?”: The Rules on Resignations, reminds us of the dangers of not handling resignations properly.
Sheryl Ferguson / Human Resource Administrator / PEO Canada