Ideally, you would never resign from a job unless you were absolutely sure that you wanted to. But mistakes happen. Is it possible to “take back” (or rescind) your resignation after it has already been given?
Submitting a Valid Resignation
In order for this issue to even arise, you must have submitted a resignation. However, a resignation must meet certain requirements to be enforceable in the first place. If your resignation was not valid to begin with, it would not have been a true resignation and there would be nothing to rescind.
To be enforceable, a resignation must be:
2) Clear and unequivocal; and
3) Accepted by the employer on the same terms proposed by the employee (i.e., it must be accepted as offered).
To be voluntary, the employee must have the mental legal capacity to resign. Furthermore, the resignation will not be voluntary if it is given as a result of a constructive dismissal or if the employee was told to “quit, or be fired”.
To be “clear and unequivocal”, there must be employee conduct that makes it very clear, without any doubt, that the employee intends to resign. This will not be the case where the resignation is conditional on something happening (i.e., “I will resign if you ask me to work on Saturday”). The emotional state of the employee also is a factor to consider. If the employee emotionally or angrily declares “I quit!”, there is the chance they did not truly mean what they said. In that case, the employer would be obligated by their duty to act in good faith in terminating employment to take further steps to determine what the employee truly meant. Context is very important.
Rescinding a Valid Resignation
Let’s assume now that the submitted resignation was valid. Under what circumstances can that valid resignation be taken back (or rescinded)?
Rescinding a valid resignation was easier in the past. It was traditionally held that employees could rescind resignations even after the employer had accepted them provided that the employer had not yet relied on the resignation to the employer’s detriment. However, this approach faced criticism for being contrary to established contract law. It has subsequently been rejected.
Today, an employee is unable to rescind a validly submitted resignation if:
a) The resignation has already been accepted by the employer, or
b) The employer has not yet accepted the resignation but has nevertheless
relied on the resignation to its detriment.
However, if the employer consents to the employee rescinding the resignation, then the resignation may be taken back notwithstanding either of the above.
Recent Case Law: English v Manulife
In a relatively recent decision by the Ontario Court of Appeal, an employee was permitted to rescind a resignation on the grounds that it was not clear and unequivocal, and therefore not enforceable. Interestingly, it was the employer’s conduct in this case that made the resignation unenforceable. When the employee submitted her resignation, her supervisor told her that she could always change her mind before the resignation date. The resignation was otherwise valid.
By promising the employee that she could change her mind at a future date, the supervisor effectively made the resignation equivocal. The resignation was now conditional on the employee not changing her mind before the stipulated resignation date. As we know, resignations that are conditional on something happening are not enforceable. Because of the supervisor’s mistake, the employee did not resign and instead the employer was found to have terminated her without cause. The employer was then ordered to pay 12 months’ salary in lieu of notice.
When it comes to resignations, it is important to be sure of your decision. In fact, it is necessary. As demonstrated by English v Manulife, an employer should also be very careful to accept and rely only on resignations that are clear and unequivocal.