Do you know someone who tendered their resignation and then had second thoughts? Maybe they did so in anger, or based on illness or circumstances changed. You may wonder: when can a resignation be retracted?
Here you will find the answer to that and we will look at what the courts consider when making a decision. You will find some useful tips, whether you are an employer or an employee, about what you need to know and what to do.
Can an employee retract a resignation?
In brief, an employee may be able to retract a resignation that was made with clear intent, provided that they have an immediate change of heart and quickly let the employer know. However, if an employee clearly and deliberately gives notice and the employer just as clearly accepts it, it may be too late to undo.
Decisions to resign happen for many reasons and in different circumstances. The onus is on both employers and employees to take specific steps to make sure that they get the result they want. Let’s look at some circumstances.
Employees may take back a resignation in these circumstances where the:
- Resignation has been made with intent, yet the employee has had an immediate change of heart and quickly let the employer know;
- Employer has not yet accepted the resignation; and
- Employer has not acted to its own detriment or suffered any expenses by reasonably relying on it
As well, an employee may take back a resignation in circumstances where the resignation was made under emotional stress, in anger or on impulse.
How is “Intent to resign” determined by the court?
Overall, the intent to resign must be deemed voluntary, clear and unequivocal and not made under conditions of emotional stress.
Let’s look in detail based on cases that have been heard by courts, how intent to resign is determined:
Case 1: Is the intent to resign clear and unequivocal?
Recently, in English v. Manulife Financial Corporation, 2019 ONCA 612, Ontario’s highest court, the Court of Appeal, confronted a case of what constitutes a “clear and unequivocal” resignation.
In this case, Elisabeth English, a 66 year old woman was a 10-year employee at Manulife Financial. Manulife Financial was considering an upgrade to its customer service department by bringing in a new computer system. Elisabeth was near retirement age and did not want to go through the training to learn the new system. In September 2016, she provided written notice of resignation, effective Dec. 31, 2016. At the time, English told her supervisor she was not certain she wanted to retire and was assured she could change her mind if she wished.
A few weeks later, she learned that the computer system was not going to be changed so she promptly asked if she could take back her resignation. Her manager did not confirm or deny the request and she kept working. However, in November, her manager informed her that Manulife was already making plans to move on, and she was asked not to return to work on Dec. 12th.
English commenced an action against Manulife for wrongful dismissal. She maintained that she should have been allowed to keep working as she had properly retracted her resignation.
What did the court decide?
- The motion judge concluded that Elisabeth’s letter constituted a “clear and unequivocal” resignation, and that her resignation was accepted by Manulife. Accordingly, Elisabeth had not been wrongfully dismissed.
- The Court of Appeal held that the motion judge erred in finding a “clear and unequivoical” resignation, ruling that Elisabeth’s resignation notice was equivocal given the circumstances in which she presented it to Manulife and that she was entitled to withdraw it. Elisabeth had properly advised that she had changed her mind and her supervisor had not indicated that there was a problem with this.
- Accordingly, since Elisabeth did not in fact resign, the Court held that her termination was wrongful and awarded her 12-months’ salary in lieu of notice.
Courts carefully consider all circumstances surrounding resignations, including the employer’s response when determining “intent” to resign”.
From this case we can see that the Court considered the employee’s request to withdraw her resignation sound as it was made in a timely manner and made before her resignation had been clearly accepted by the employer. In the end, the Court found she did not have a continuing clear intent to resign. The employer had not clearly accepted her resignation and had not acted to its detriment in relying on the resignation.
An employee really can quit and take it back later if the circumstances don’t demonstrate a clear intent and a clear acceptance of the resignation.
Case 2: Is the intent to resign offered under conditions of emotional stress?
In Upcott v. Savaria Concord Lifts Inc., 2009 CanLii 41348 (Ont S.C.) after a dispute with a fellow co-worker, the employee, Barry Upcott, told both his boss and the HR manager he was fed up and said, “I’m done”. He refused to discuss the issue. He turned in his keys, made two trips to collect some belongings, left the workplace, and left a phone message for his boss to ask about picking up the remainder of his belongings from the office. The employer interpreted the employee’s actions as a resignation; quickly deleted all of his emails, disabled his email, called his home to verbally accept his resignation and advised that a follow-up letter accepting the resignation was on its way.
The employee sued the employer, alleging that he had not really resigned because he acted in a fit of anger and should have been allowed to retract his resignation.
What did the court decide?
Despite the employee expressing a clear intention to resign, the resignation was not valid and the employee should have been allowed to come back to work. The Court reasoned that:
- A reasonable person viewing the situation objectively would not have concluded that the employee’s words and actions amounted to a voluntary resignation and;
- A reasonable person viewing the situation objectively would have considered that the employee went through a foolish fit of anger and he would likely retract his resignation quickly after leaving the office.
By refusing to allow the employee to come back to work afterwards, the employer engaged in wrongful dismissal. The Court awarded the employee $50,000 in damages. Although a resignation may appear clear and unequivocal and an employer has accepted it, the resignation will not be valid and can still be retracted where the employee made the resignation on impulse in a state of emotional stress.
So what can we learn from these cases that will help employers and employees to make the right choices and get the results they want?
Tips for Employees
- Make sure to take ample time to “cool off” if you have had heated arguments or are upset at work. Making important life decisions such as quitting your job should be made in a calm state of mind and emotion not in the heat of the moment.
- If you are sure of your intent to resign, always communicate it in writing to the employer in clear and unambiguous language.
- If you intend to resign but are not entirely sure of your decision, avoid speaking with co-workers about it and do not take any actions that are associated with resigning (like clearing your desk of items and taking them home).
- If you want to retract your resignation, timing is critical. Notify your employer as soon as possible that you wish to retract the resignation. The courts are more likely to conclude that the resignation was not valid if you promptly take steps to rescind it.
Tips for Employers
- If an employee submits a resignation, and you wish to move ahead with it, it is best to promptly confirm, in writing, that you have accepted that offer.
- If an employee has resigned in the middle of an emotional outburst, especially one that is entirely out of character, it is advisable to avoid acting upon it and let emotions settle.
- Under emotionally charged situations, consider offering the employee a chance to “cool off”. Speaking to them under calmer conditions can clarify intent.
- Consider all conditions around the intent to resign. Always evaluate the employee’s behaviour. Is it consistent with actual voluntary intent to resign or is it unusual behaviour that may be linked to mental health issues, upsetting workplace conditions or other external factors?
- Once you have established that the employee has resigned and voluntarily intended to do so, advise the employee in writing of the acceptance of the resignation.
- Request that all resignations be submitted in writing.
- Make sure you are not forcing a resignation upon an employee – ultimatums or making changes to roles/positions may be perceived as wrongful dismissals.
Contact Justin W. Anisman
Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.