Employees must be given time to consider resignations

Following a confrontation with another employee, Barry Upcott stormedinto the human resources office at work and suddenly proclaimed that hewas finished at his job. When he then handed in his keys and swiftlyleft the premises his employer, Savaria Concord Lifts, believed thatUpcott had resigned.&nbsp; <br />

Following a confrontation with another employee, Barry Upcott stormed into the human resources office at work and suddenly proclaimed that he was finished at his job. When he then handed in his keys and swiftly left the premises his employer, Savaria Concord Lifts, believed that Upcott had resigned.

Upcott had worked for Savaria for eight years, and over time he been told to walk away from arguments and calm down. However, after learning that an important project had been delayed, Upcott angrily spoke with a co-worker, demanding that she get a part to complete the order. The co-worker immediately e-mailed the director of human resources, Bruce Hayes, to complain.

Once Upcott learned of the complaint, he walked into Hayes’ office and announced that he was “done,” thinking that he was the guilty party in the argument. After handing in his keys and walking out of the office, Upcott then announced he was leaving to two other employees and made two separate trips back and forth to his car to pack up his personal belongings before going home.

Assuming that Upcott had resigned from his job, the company quickly moved to delete Upcott’s access to his BlackBerry and then promptly called him at home to confirm that it viewed his actions as a resignation and that a letter was being couriered to him later that afternoon. Importantly, Upcott was not asked for his version of the events or whether he had truly wished to resign.

Upcott recently decided to challenge his employer’s interpretation of the events and sued for wrongful dismissal. Surprisingly, a judge rejected Savaria’s argument that Upcott had resigned and instead found he had actually been fired. Although Upcott suggested he was resigning, all of his actions occurred in the heat of the moment and without having been given an opportunity to consider his actions or change his mind.

Canadian courts consistently reject that employees have resigned unless it was clear that this was their true intention. Here, the employer had an obligation to encourage Upcott to reconsider his actions rather than swiftly accept what it viewed was his resignation. By cutting off Upcott’s BlackBerry access and couriering him a letter accepting his purported resignation, Savaria had effectively terminated his employment.

To avoid such misconceptions, employees who have indicated an intention to resign should be given the benefit of time to consider their true intentions and then asked to confirm their plans in writing, as employees are free to change their mind even after expressing an intention to voluntarily leave.

 


– 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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