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When a resignation isn’t really a resignation

How do you know when an employee has quit her job? It may seem like a simple question, but the answer recently eluded an Ontario employer, who improperly took an employee’s apparent resignation at face value.

The employee in Johal v Simmons da Silva LLP was a senior family law clerk who had been employed with the law firm for 27 years. She had been the only law clerk supporting one of the lawyers at the firm for several years.

Ms. Johal was called into a meeting at which she was advised that another law clerk would be returning from parental leave shortly, and that she would need to work with her. She was upset because she believed the returning employee would be considered senior to her, and that she would have to take her direction. Before the other clerk had gone on leave, their relationship had been acrimonious.

Ms. Johal left work early after the meeting. She returned the next day, and the employer alleged that she calmly removed her personal belongings and later that day, she went to the lawyer’s office and returned her security pass to him.

The law on resignation

As cited by the court, a resignation must be “clear and unequivocal”. Conduct must objectively demonstrate an intention to resign. Such an assessment must be contextual, and must account for the fact-driven circumstances of the situation. For example, an outburst during an emotionally charged situation may not amount to a resignation.

The decision

The court found that Ms. Johal had not resigned. The employer’s assessment that she was calm when she came to work the next day was extremely suspect. Two family lawyers had recently resigned and so the firm was ‘top heavy’ with senior law clerks and less work between them. As such, the court observed that it would have been to the employer’s financial advantage to have her resign voluntarily.

Notably, the employer took no steps to clarify the employee’s intention, despite her 27 years of service.  Moreover, she had never threatened to resign nor walked out. Further, when the employee returned to the office and dropped off her security pass, her boss did not make any inquiries about what had taken place, and never set up a follow-up meeting.  Ms. Johal did not provide the employer with any notice of resignation.

Other relevant circumstances, were that she had been called into the meeting without notice, information about her work arrangements going forward had not been finalized, and her employer knew that she did not get along with the returning clerk.

The court also noted that her job was close to her home, she was 62 years of age at the relevant time, and that it was unlikely that she would have had another job immediately available to her.

The court found that Ms. Johal simply needed a few days to gather her thoughts after being surprised at the meeting. In the circumstances, the employer was required to do more to determine her true and unequivocal intention.

The Takeaway

Employers should be aware that they may have an obligation to follow-up with employees to determine their true intentions in the face of an apparent resignation. This is particularly true in the case of a long-term employee who receives sudden shocking or upsetting news.

Employers should also take heed that courts will consider an employer’s possible motivations for turning a blind eye to the genuineness of an employee’s resignation. It seems unlikely that the employer in this case intended to shock the employee into quitting.  However, the court noted that it was a little too convenient that she did so, without any question from her long-time employer, just as there was about to be a reduction in work.

In our view, the court appears to have concluded that Ms. Johal’s resignation was given in the heat of the moment, and so could not be said to be truly unequivocal.  That would be consistent with prior authority and would help square the facts with other cases in which clearing one’s desk and returning access cards and keys has been found to constitute objective evidence of a true intention to resign.  Somewhat ironically, had the employer sought clarification of her intentions, and had she confirmed that her intention was to resign (particularly after a few days), the court may have decided the matter differently.

Employers would be well-advised to follow-up in writing, and request a written response from the employee after a brief cooling-off period if appropriate.

This blog was first published on First Reference Talks.

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