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Resignation: Can You Take it Lying Down?

Written by on January 05, 2017. Posted in Employment, Labour & Employment, News

Say you’re an employer facing the prospect of being overstaffed. Some managers have recently left your employ but their support staff remain. You meet with one of your employees to discuss some upcoming changes to their job description in light of this impending overstaffing. They are upset by these changes, but the meeting ends and you think nothing more of it. The next day, the employee comes into work, packs up their things and walks out the door. You hear nothing from them for days. They’ve quit, right?

As my colleague Jennifer Costin previously discussed in her post Does “I Quit” really mean “I Quit”?, even in the circumstances described above, employers can have a hard time confirming an employee’s resignation if that employee has not clearly stated their intentions. This once again rang true in the Superior Court’s recent decision in Johal v Simmons Da Silva LLP.[1]

Ms. Johal was a 62 year old law clerk who had been working for Simmons Da Silva LLP for 27 years when she walked out the door without explanation. The firm had recently lost two of its four lawyers but still employed five law clerks, including Ms. Johal. In addition, a sixth clerk, Ms. Forsythe, was set to return from a maternity leave. Mr. Clark, a remaining lawyer, met with Ms. Johal to explain how these staffing changes would impact her position. Ms. Johal was upset to learn that she would be sharing her job responsibilities with Ms. Forsythe, who she understood would be assigning her tasks. The next morning, Ms. Johal collected her personal belongings, handed in her security pass and left the office. Four days later, after missing two and a half days of work, Ms. Johal received a letter from the firm accepting her resignation. Ms. Johal sued for wrongful dismissal, arguing that she did not resign.

The Court agreed with Ms. Johal, finding that the firm could not have reasonably viewed her actions as a voluntary resignation without, at least, some investigation. It was required to do more to determine Ms. Johal’s true and unequivocal intention. The Court relied on the following findings:

  • No one at the firm attempted to contact Ms. Johal after her departure.
  • Ms. Johal had never threatened to resign in her previous 27 years.
  • Ms. Johal would not have had a job immediately available to her.
  • She did not provide the firm with written notice or even verbally state that she was quitting.
  • Her sudden departure was out of character.
  • The firm benefited from simply accepting what they thought was a resignation.

The take away for employers? When it comes to resignations, remember the bigger picture. If the resignation came when the individual was upset or without a clear statement orally or in writing that they are resigning, make the effort to confirm whether the resigning employee truly intended to quit their job. One extra call or email could save a day in court.

If you need advice about an ambiguous resignation or reinstating an employee after a false alarm, we can help. Contact Amanda Shaw or call us at 519.672.2121 to speak with someone from our Labour and Employment team.

[1] 2016 ONSC 7835 (CanLII)