Introduction

Employers often do not think enough about the consequences of a heat-of-the-moment resignation. It is generally assumed that when an employee says "I quit" or storms out of the workplace, the employment relationship has come to an end and the employer owes him or her no further obligations.

However, a recent Ontario Superior Court of Justice decision in Johal v Simmons da Silva LLP (2016 ONSC 7835) serves as a reminder that employers should exercise caution before accepting a resignation from an employee who quits suddenly following an emotional outburst at work. For the resignation to be valid, it must be clear, unequivocal and, most importantly, reflect the employee's intention to resign.

Facts

The employee, Rajinder Johal, worked as a senior family law clerk at law firm Simmons da Silva LLP for 27 years. On June 3 2015 a partner of the firm called her in for a meeting, during which she was informed of certain changes that were to be made to the family law group.

At the time the family law group consisted of four lawyers, three senior law clerks (including Johal) and two junior law clerks. Johal was told that one of the lawyers was resigning and that one of the senior law clerks would soon be returning to work from parental leave. According to Johal, she was also told that she would be reporting to, and her work would be assigned to her by, this senior law clerk.

The next morning, June 4, Johal removed all of her personal belongings from the office. She went to see the partner who had spoken with her, gave him her security pass and walked out of the office. She did not return to work on Friday June 5, or Monday June 8. She did not contact any partners or the human resources department.

The employer mailed a letter to Johal accepting her resignation and confirming that it was effective as of 5:00pm on June 8. On June 9, Johal wrote an email to her employer asking to withdraw her notice of resignation. The employer refused on the basis that it had relied on her resignation. Specifically, the employer said that it had already:

  • notified a probationary junior law clerk that her employment was secure;
  • advised clients about Johal's departure; and
  • advised the other staff members that she had resigned.

The employer was concerned that rehiring Johal would encourage other employees of the firm to resign without notice, as they would not be subject to any repercussions.

Decision

It is now well-established law that a resignation must be clear and unequivocal to be valid. The employee, by his or her words and actions, must reflect an intention to resign. Whether words or actions equate to resignation must be viewed contextually. The surrounding circumstances are, of course, relevant to help determine whether a reasonable person would have objectively understood that the employee intended to resign. In Johal, the court considered the following factors:

  • Johal was 62 years old.
  • She had worked for her employer for 27 years.
  • She had never previously threatened to resign.
  • She did not provide written notice of resignation.
  • She did not state verbally that she was quitting or resigning (she merely walked out).
  • Her resignation was out of character.
  • Her employer did not attempt to discuss the matter further with her.
  • No one attempted to contact her following her departure.
  • The resignation occurred suddenly after a meeting about important changes in the workplace.

In considering all of the circumstances, the court concluded that Johal had not voluntarily resigned from her employment. Instead, she needed a few days to consider the changes that were taking place and what they meant for her going forward. Given the context, Johal's employer was required to take additional steps following her sudden departure to determine her true and unequivocal intention. The court therefore found that she was wrongfully dismissed and, failing an agreement of the parties, ordered a trial on the issue of the quantum of damages.

Comment

Employers should always ensure that a resignation is clear and unequivocal, especially if it occurs 'in the heat of the moment'. An employer that accepts a notice of resignation without considering the surrounding circumstances risks significant exposure for wrongful dismissal.

When in doubt, employers should provide the employee with sufficient time to cool down and then seek to clarify the employee's intention before processing the resignation.

For further information on this topic please contact Stefan Kimpton at Fasken Martineau DuMoulin LLP by telephone (+1 613 236 3882) or email (skimpton@fasken.com). The Fasken Martineau DuMoulin LLP website can be accessed at www.fasken.com.

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