Even if they’ve handed in their swipe card and stormed off the job, it might not count as a resignation
If an employee throws their toys and storms out of the office - even if they don’t come back - it’s not safe to assume they’ve quit.
Employers can be found liable for wrongful dismissal if they jump to the conclusion, without seeking confirmation - such as a resignation letter - from the worker.
In a landmark case decided last year, an Ontario law clerk who walked off the job was found to have been wrongfully dismissed, because her boss believed she had quit - but didn’t follow up to make sure.
Although the staff member had handed in her security pass, packed up her belongings, and did not return to work, the Ontario Superior Court of Justice ruled that wasn’t a “clear and unequivocal” resignation.
A legal expert says the case should be a warning to employers that they should always follow up any suggestion of a resignation, to be sure it’s what it seems.
“There is an obligation on the employer to at least enquire and make further determination as to whether there’s been a true resignation. That’s why, a lot of times, we would recommend employers seek a written resignation,” Borden Ladner Gervais lawyer Andrew Pozzobon says.
“Even in that case, there have been situations where a statement has been made which is ‘I resign’ or ‘I quit’ or even a note [saying] ‘I can’t do this anymore’, where the courts have found that there should be a cooling off period as well.”
Pozzobon says a notice period of at least two weeks is advisable, “so in that period, the employee can come back to work” if they change their mind - though whether that’s possible will depend on the facts in the case.
“If the employee hands in his notice and then the company starts actively searching for a replacement and takes steps and has relied on the employee’s representation, in that case, they probably couldn’t retract that.”
Even if the employee stops showing up for work, the employer should follow up on whether they’ve resigned.
“Just send some sort of document or confirmation saying ‘we’re taking your absenteeism is a resignation and we understand that you’ll no longer be coming back to work for us, if this is not the case, please contact us within a certain period of time’.”
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Employers can be found liable for wrongful dismissal if they jump to the conclusion, without seeking confirmation - such as a resignation letter - from the worker.
In a landmark case decided last year, an Ontario law clerk who walked off the job was found to have been wrongfully dismissed, because her boss believed she had quit - but didn’t follow up to make sure.
Although the staff member had handed in her security pass, packed up her belongings, and did not return to work, the Ontario Superior Court of Justice ruled that wasn’t a “clear and unequivocal” resignation.
A legal expert says the case should be a warning to employers that they should always follow up any suggestion of a resignation, to be sure it’s what it seems.
“There is an obligation on the employer to at least enquire and make further determination as to whether there’s been a true resignation. That’s why, a lot of times, we would recommend employers seek a written resignation,” Borden Ladner Gervais lawyer Andrew Pozzobon says.
“Even in that case, there have been situations where a statement has been made which is ‘I resign’ or ‘I quit’ or even a note [saying] ‘I can’t do this anymore’, where the courts have found that there should be a cooling off period as well.”
Pozzobon says a notice period of at least two weeks is advisable, “so in that period, the employee can come back to work” if they change their mind - though whether that’s possible will depend on the facts in the case.
“If the employee hands in his notice and then the company starts actively searching for a replacement and takes steps and has relied on the employee’s representation, in that case, they probably couldn’t retract that.”
Even if the employee stops showing up for work, the employer should follow up on whether they’ve resigned.
“Just send some sort of document or confirmation saying ‘we’re taking your absenteeism is a resignation and we understand that you’ll no longer be coming back to work for us, if this is not the case, please contact us within a certain period of time’.”
Related stories:
Legal experts reveal what employers must learn
Don’t get caught out by pay hikes under new law
