Canadian employees have no right to severance pay if they voluntarily leave their job. Some 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 stated he would leave his job but then changed his mind after his employer, Ingram Micro, proposed to accept his “resignation.”
Since Ingram hadn’t already acted to its detriment by the time Kieran changed his mind, the Court concluded that he hadn’t resigned and was free to keep his job.
Similarly, resignations arising from an ultimatum may be nothing more than a camouflaged termination. Where an employee is a given an ultimatum to either resign or be fired, courts have often decided the employee was fired. A true resignation is a voluntary action.
Even an obvious indication of an intention to resign does not make it so. In a fury, Susan Lelievre demanded a severance package, fired off emails announcing her last day of work, packed up her belongings and then left. Lelievre’s employer, AIG Insurance, concluded that she had resigned. However, during the ordeal, AIG demanded that Lelievre return all company property, including her office keys and pass card.
Since AIG treated Lelievre as having resigned before she left the office, it effectively fired her, ruled the court. 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 resignation, to become effective, does not actually require the use of that very word. The real test is whether an employee’s actions are clearly 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, an employee 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, which suggests they had no intention to leave.
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.
Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP. dan@toronto-employmentlawyer.com
