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Intention to quit must be 'unequivocal' - Metro US

Intention to quit must be ‘unequivocal’

Stan Carmichael and Ernie Jakubowski were friends with a common interest – both were Porsche aficionados. When Carmichael found himself without work, Jakubowski, the owner of Mantis Racing Inc., a high-end automotive shop involved in racing events throughout North-America, saw the potential to grow his business.

Over beers and a handshake, the two friends agreed that Carmichael would become Mantis’ new general manager. However, their relationship would soon sour.

Within a year, Carmichael’s expenses and outstanding bonuses made him Mantis’ second biggest account payable. Wanting to get paid and tired of getting the run-around, he threatened to quit. Jakubowski did not address the threat. Several months passed during which Carmichael and Jakubowski attended separate North American events. Upon their return, a brief meeting was held where Jakubowski offered to pay Carmichael an amount substantially less than what Carmichael claimed was owed to him. The threat of resignation was not discussed. That same day, Carmichael received an email advising him that he was being laid-off because Mantis could no longer afford him. He was asked to return his keys the next day.

Believing he was entitled to more, Carmichael recently sued Mantis claiming thousands for wrongful dismissal and outstanding expenses and bonuses. Interestingly, however, Mantis defended the claim by arguing that Carmichael resigned.

For a resignation to be effective there must be more than the mere threat to leave. Rather, the intention to resign must be unmistakable.

Here, Mantis failed to establish that Carmichael’s intention to quit was clear. Jakubowski had not confirmed the resignation, let alone accepted it. Instead, months passed during which it was business as usual at Mantis. Further, Carmichael’s actions were not indicative of someone who intended to resign. He did not stop working, remove any of his personal belongings from the office or specify a departure date. Instead, when Jakubowski told Carmichael that he was being laid off and to return his keys, he effectively fired him.

Often, employees find themselves in the “twilight zone,” somewhere between wanting to leave and having been fired. If you want to avoid being characterized as resigning, then follow these guidelines:

  • Resist taking any steps that can be construed as voluntarily withdrawing from the workplace, as difficult as that may be.
  • Immediately protest a characterization that there has been a resignation, if it wasn’t the intended result.
  • If unclear, request that your options be outlined in writing and seek specialized advice before taking any action.

– Daniel A. Lublin is an employment lawyer with the law firm Whitten & Lublin LLP. Reach him at dan@toronto-employmentlawyer.com

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