“Once you learn to quit, it becomes a habit.”
- Vince Lombardi

 

After a tumultuous nine-year relationship with his boss, Juan Moreno may have finally had enough of his job.

 

But when he left the Oakville, Ontario offices of Comfact Corporation after another argument, he didn’t think it would be his last day of work. Moreno hadn’t been formally terminated and he didn’t think he had resigned either. When he was accused of quitting, however, Moreno wasn’t about to go quietly.

 

Over the course of their working relationship, Moreno often butted heads with his boss, Comfact president Robert McAllister. As the general manager, Moreno felt that he wasn’t being treated with enough respect. Following another one of their routine flare-ups, Moreno gave McAllister a letter announcing that he would be resigning in two weeks’ time.

However, McAllister did not accept Moreno’s resignation. Instead, he suggested they let cooler heads prevail and meet in a few days to discuss the matter again. When they later met, the meeting went well and Moreno withdrew his resignation. He and McAllister agreed that they would continue as if nothing had happened.

A few months later, the two sparred again the day after Moreno returned from a two-week vacation. According to McAllister, Moreno had a “stupid” idea for one of his files and when he told him so, the conversation became heated. The next morning McAllister wrote a letter to Moreno advising him that he had accepted his resignation. Moreno packed his personal belongings and left. He was then given two weeks’ severance pay.

At a recent trial to determine whether Moreno had quit or was fired, McAllister attempted to persuade the judge that Moreno had declared his intention to resign during the argument.

However, the judge wasn’t convinced. Prior to Moreno’s departure, McAllister had mentioned that he wanted to “get rid” of Moreno and the resignation that he purported to accept was the same resignation that had been withdrawn months earlier. When McAllister attempted to accept a resignation that had already been withdrawn, Moreno was effectively fired.

In order for a resignation to be effective, the real test is whether the 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.

Daniel A. Lublin is an employment lawyer focusing on the law of dismissal. dan@toronto-employmentlawyer.com.