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Law of resignation favours employees

Canadian employees have no right to severance pay if voluntarilyleaving their job.&nbsp; They may claim this is unfair - but not so fast:the laws of resignation generally work in their favour.&nbsp;&nbsp; <br />


Canadian employees have no right to severance pay if voluntarily leaving their job. They may claim this is unfair - but not so fast: the laws of resignation generally work in their favour.

Employees tendering their resignation are sometimes free to withdraw it and continue as before. Just ask top-gun computer executive Andrew Kieran, who’s employer, Ingram Micro, proposed to accept his “resignation” after he indicated that he wouldn’t work for a rival employee who was expected to receive a promotion. But the Ontario Court of Appeal resoundingly concluded Kieran was free to change his mind, as long as Ingram hadn’t already accepted the resignation by its actions or conduct.

Even an obvious indication of an intention to resign does not make it so. When -- in a blaze of fury -- Susan Lelievre demanded a severance package, fired off a number of emails announcing her last day of work, packed up her belongings and then left, her employer, AIG Insurance, concluded that she had resigned. However, AIG made one fatal mistake: relying on Lelievre’s statements that she was leaving, management did not step in to outline her options. Instead, the court ruled, by demanding the return of all company property, it effectively terminated her employment. Employees should be given the benefit of time to consider their actions and asked to confirm their intentions in writing. Lelievre had not been given that option.

A true resignation must not be given on impulse. The law recognizes that spontaneously made statements may not constitute a valid resignation. Neither should an employer seize upon the intemperate utterances of an emotionally charged employee. Therefore, an employee who proclaims “I quit” in the heat of the moment should not be taken as actually having resigned.

A resignation, to become effective, does not actually require the use of that very word. The real test is whether an employee’s actions are consistent with someone voluntarily wishing to leave. I currently have two such cases. In one, the employee emphatically denies having uttered the words “I quit.” In the other, she asserts that the employer wrongly attributed to her a statement indicating that she had resigned. In both cases, the employees came to work the next day as if nothing unusual had happened. The conclusion to their cases will be, I suspect, based not upon the words used by my clients but on their actions and conduct at the time that those words were said – and afterwards. Nothing else ought to be dispositive.

Courts will see through a camouflaged termination, masked as a resignation. Summoned to his boss’s office, Stew Schwindt was handed a piece of paper that stated he was resigning and told that it would be best to sign his name. Finding that Schwindt was pressured to resign, the judge ruled that he was terminated instead. A true resignation is a voluntary action.


Daniel A. Lublin is an employment lawyer practising exclusively in the law of wrongful dismissal. He can be reached at dan@canadaemploymentlawyer.com or through his website, canadaemploymentlawyer.com.

 
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