Ontario: I Quit! Or Did I?

By Stefan Kimpton © 2017 Fasken Martineau May 22, 2017
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​A recent decision of the Ontario Superior Court of Justice—Johal v Simmons da Silva LLP—should serve as a reminder that Ontario employers ought to exercise caution before accepting a resignation from an employee who quits suddenly following an emotional outburst at work. Saying "I quit" or storming out of the workplace is not always enough. For the resignation to be considered sincere, it must be clear and unequivocal. Most importantly, it must reflect the employee's intention to resign.

Facts

The plaintiff, Rajinder Johal, worked as a senior family law clerk at Simmons da Silva LLP, a law firm, for 27 years. On June 3, 2015, a partner of the firm called Johal in for a meeting. During this meeting, Johal was informed of certain changes that were to be made to the family law group. At the time, the family law group consisted of four lawyers, three senior law clerks, including Johal, and two junior law clerks. Johal was told that one of the lawyers was resigning and that one of the senior law clerks would soon be returning to work from a parental leave. According to Johal, she was also told that she would now be reporting to this other senior law clerk and that her work would be assigned to her by this other law clerk. Suffice it to say, Johal was not at all impressed.

The next morning (June 4, 2015), Johal removed all of her personal belongings from the office. She went to see the partner who had spoken with her the day prior, gave him her security pass and walked out of the office. She did not return to work on Friday, June 5, 2015 or on Monday, June 8, 2015. She did not contact any partner of the firm or the human resources department.

Soon thereafter, the employer mailed a letter to Johal accepting her resignation and confirming that it was effective as of June 8, 2015 at 5:00 p.m.

On June 9, 2015, Johal wrote an email to her employer asking to withdraw her notice of resignation. The employer refused on the basis that it had relied on Johal's resignation. Specifically, the employer said it had already (i) notified a probationary junior law clerk that her employment was secure, (ii) advised clients about Johal's departure, and (iii) advised the other staff members that Johal had resigned. The employer was concerned that rehiring Johal would encourage other employees of the firm to resign without notice as they would not be subject to any repercussions for such actions.

Applicable Law

It is now well-established law that a resignation must be clear and unequivocal to be valid. The employee, by his or her words and actions, must reflect an intention to resign. Whether words or actions equate to resignation must be viewed contextually. The surrounding circumstances are, of course, relevant to help determine whether a reasonable person, viewing the matter objectively, would have understood that the employee intended to resign.

In Johal, the court considered several factors surrounding the alleged resignation of Johal:

  • She was 62 years old.
  • She had worked for her employer for 27 years.
  • She had never before threatened to resign.
  • She did not provide written notice of resignation.
  • She did not state verbally that she was quitting or resigning (she merely walked out).
  • Her resignation was out of character.
  • Her employer did not attempt to discuss the matter further with her.
  • No one attempted to contact her following her departure.
  • It occurred suddenly after a meeting about important changes in the workplace.

In considering the totality of the circumstances, the court concluded that Johal had not voluntarily resigned from her employment. Instead, she needed a few days to consider the changes that were taking place and what they meant for her going forward. Given the context, Johal's employer was required to take additional steps following her sudden departure to determine her true and unequivocal intention. The court, therefore, found that Johal was wrongfully dismissed and, failing an agreement of the parties, ordered a trial on the issue of damages.

Takeaway for Employers

Employers should always ensure that a resignation is clear and unequivocal, especially if it occurs "in the heat of the moment." An employer who jumps the gun and accepts a notice of resignation without considering the surrounding circumstances risks significant exposure for wrongful dismissal. When in doubt, provide the employee with sufficient time to "cool down" and then seek to clarify the employee's intention before processing the resignation.

Stefan Kimpton is an attorney with Fasken Martineau in Ottawa.  © 2017 Fasken Martineau. All rights reserved. Reposted with permission of Lexology.

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