STACEY REGINALD BALL
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The test to determine whether an employee has resigned is an objective one – would a reasonable person have understood that the plaintiff resigned given all the surrounding circumstances?
Areas of Employment Law
Employees may resign from their place of work for any number of reasons. See Assouline v. Ogivar Inc. (1991), 39 C.C.E.L. 100 (B.C.S.C.) There must be clear and unequivocal evidence that the employee has actually resigned, or else an employer may find themselves in trouble. Further, the resignation must be given freely and voluntarily. An employee who “resigns” because their employer demands it is not considered to have resigned at all under the law. Like many areas of employment law, the particular circumstances of an individual’s resignation are crucially important. For example, an emotional and spontaneous outburst of “I quit!” and a comment that an employee as going to start looking for new employment was found to be insufficient to terminate an 11 year employment relationship.
See Widmeyer v. Municipal Enterprises Ltd. (1991), 36 C.C.E.L. 237 and Lelievre v. Commerce and Industry Insurance Co. of Canada (2007), 57 C.C.E.L. (3d) 31 (B.C.S.C.). As another example, if the parties do not agree on an exact termination date, it is less likely that the courts will find a valid resignation. See Moore v. University of western Ontario (1985), 8 C.C.E.L. 157 (Ont. H.C.J.). An employee who has properly resigned is able to change their mind, unless the employer has acted to its detriment on the employee’s expressed intention to resign. See Robinson v. Team Cooperheat-MQS Canada Inc. (2008), 67 C.C.E.L. (3d) 219 (Alta. Q.B.) and Lelievre v. Commerce and Industry Insurance Co. of Canada (2007), 57 C.C.E.L. (3d) 31 (B.C.S.C.) for recent Canadian cases on this point.
The length of notice that a resigning employee must give is not the same as the amount of reasonable notice an employer is required to provide to a terminated employee. The length will be impacted by factors such as the employee’s responsibilities, length of service, salary and the time it will take the employer to replace the employee. An employee who fails to provide proper notice of resignation to their employee may constitute a wrongful resignation. The point, after all, is to allow the employer time to find a replacement for the resigning employee. An employee may be breaching their contractual obligations under an employment agreement or collective bargaining agreement, or they may even be breaching their fiduciary duty to the employer.
See GasTOPS Ltd. v. Forsyth,  O.J. No. 3969 (Ont. S.C.J.). Further, if an employee fails to provide reasonable notice, the employer may have an action for damages. If an employer claims damages, they must show evidence of a loss and they must demonstrate that they mitigated their loss. Please note that the above information does not constitute legal advice. It is general information about the law. If you require legal advice and assistance in an employment or labour matter, please contact the experts at Ball Professional Corporation.
Canadian Employment Law
Mr. Ball is author of the authoritative and definitive text Canadian Employment Law - published by Canada Law Book (a division of Thomson Reuters). The text is used and cited by lawyers, law schools and judges across Canada.
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