Unfortunately, resignations are unavoidable in the workplace, and can be uncomfortable for both parties. Knowing the rules of resignation can make these conversations much easier for both the employee and employer and may avoid a potential claim to the organization.
An employee’s resignation is usually 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, then 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 they are leaving their job, and the time that they actually leave. When an employee has given the employer proper notice that they are 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. The employer must pay the employee all the wages they are entitled to receive at the end of the notice period.
To be effective, a resignation must be clear, unambiguous, and requires not only the employee’s intention to resign, but also the employee’s written words and actions (objectively viewed) to support a finding of resignation. A resignation cannot be obtained through pressure, coercion or duress, and must be voluntary. 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 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 that the facts, when viewed objectively by a reasonable person, must clearly demonstrate that the employee no longer has the intention of being bound by the employment contract.
In most cases, the employee clearly expresses verbally and in writing that they are 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, they may ultimately decide to pursue a claim of constructive dismissal.
If you require further support or guidance with resignations of employees and your responsibility as an employer, please reach out to your PEO Canada HR Advisor for more support.