Likely every unionized employer reading this has faced the situation where an employee, in some way or another, "quits" and then some time after claims s/he didn't mean it. It is fair to say that many employers have initially rubbed their hands in glee (without being too cynical) only to be told that, in the circumstances, they would be wise to allow the employee to return to work. I recently fielded questions by three different clients on this topic, so as a follow-up to my colleague Monique Petrin Nicholson's post in March of this year, I thought it would be a good time to send out this summary of the law.

Employee resignations have two components. First, there is the subjective intent to quit. Second, the intention must be confirmed by some objective conduct. Think of it as a golf or tennis swing. Hitting the ball is one thing. The power and control of the shot come from the follow through.

On the first point, it must be demonstrated that the employee had the subjective intent to quit. This is generally the easier part. The employee utters the words "I quit", or "I resign". In some cases, the evidence will show that the employee told colleagues in the days or weeks before that s/he was going to do so. In other cases, the statement is made in the heat of the moment. It could follow an argument with a supervisor, or after being issued discipline. In either case, there is an express statement from the employee. Going back to the sports analogy, contact with the ball has been made.

Now for the harder part - the follow through or, in legal terms, objective conduct that confirms the intention to quit; For example, the employee writes and submits a letter of resignation on his/her own (vs. signing one that was prepared by the employer). Or, the employee cleans out his/her locker and goes for a good-bye beer with other employees. Better yet, the employee meets with his/her union representative prior to leaving the plant. The employee can be said to have followed through with the statement of "I quit".

But wait, there's more. Some time after leaving the plant, the employee attempts to rescind the resignation. This may be hours, days or even weeks after after doing so. The employee might have realized on his/her own that the decision was a foolish one. Or, the employee's partner might have pointed that out. In a case I had years ago, shortly after tendering his written resignation, the employee learned that quitting did not get him out of his family support obligations (true story). After a three day arbitration, his grievance was dismissed.

The timing of the attempt to renege the decision is a factor. Returning to the plant within hours after quitting may draw more sympathy from an arbitrator. But a quick reversal is not determinative. Rather, if it can be shown that the employee expressed his/her desire to quit and took confirmatory steps after doing so, an arbitrator might very well find that the employee must live with the consequences of his/her actions.

In the end, the facts of each particular case will govern. Absent evidence of both subjective intention and objective conduct, the refusal to even consider allowing an employee to reverse his/her decision may lead to an unfavourable result in arbitration.