January 16, 2017

When is a Resignation a Real and Enforceable Resignation?

What, at law, is a valid and enforceable resignation? The Ontario Superior Court of Justice considered this, among other things, in Johal v Simmons da Silva LLP, 2016 ONSC 7835 (CanLII).

Johal was a senior law clerk at the defendant law firm. She was 62 years of age having worked at the firm for 27 years. A couple of lawyers resigned from the firm (one in 2014 the other in the summer of 2015) and another law clerk was returning to work after completing a parental leave (Forsythe).

A meeting took place with the lawyer (Clark) who Johal worked with, HR and Johal in attendance. Recollections of the meeting varied. Changes in the work arrangement would be made. The firms evidence was that:

He had developed a role for Ms. Forsythe to assist him with file coordination because she had experience with this type of work in the past and it was a comparable position to her previous role, which the Defendant was obligated to offer her upon her return from parental leave; and

She, the Plaintiff, would continue in the same role she had worked in for many years, and he, Mr. Clark would continue to be her boss.

Johal’s recollection of the meeting was that:

[Clark] then proceeded to tell the Plaintiff that Ms. Forsythe would be responsible for assigning work to her;

He referred to Ms. Forsythe’s role as project manager and not file coordinator, and that as project manager, Ms. Forsythe would be responsible for assigning tasks to the Plaintiff.

The Plaintiff denies that Mr. Clark told her she would continue to report to him.

The following day, Johal attended at work, went to see Clark, handed her security pass to him, collected her personal belongings and went home. She did not return to work for a few days.

It was known that Johal had an acrimonious relationship with Forsythe. She was upset.

The first issue to be decided was whether Johal resigned? The Court cited the following helpful comment from Gebreselassie v. VCR Active Media Ltd., 2007 CanLII 45710 (ON SC):

A valid and enforceable resignation must be clear and unequivocal — to be clear and unequivocal, the resignation must objectively reflect an intention to resign, or conduct evidencing such an intention … Whether words or actions equate to resignation must be viewed contextually — the totality of the surrounding circumstances are [sic] relevant to determine whether a reasonable person, viewing the matter objectively, would have understood the employee resigned … .

Whether a resignation is clear and unequivocal requires a fact-driven assessment of all relevant evidence.

Although the Court in Gebreselassie held that the employee had voluntarily resigned, it also accepted that “a resignation during a spontaneous outburst in highly charged emotional circumstances can undermine its essential voluntariness”.

Another issue in the Johal case is that she withdrew her resignation some days later. As the Court of Appeal in Kieran v. Ingram Micro Inc. (2004), 2004 CanLII 4852 (ON CA) noted:

… it is clear, as counsel agreed, that an employee may resile from a resignation, provided the employer has not relied upon it to its detriment …

Whether words or actions equate to a resignation must be determined contextually.  The surrounding circumstances are relevant to determine whether a reasonable person, viewing the matter objectively would have understood Mr. Kieran to have unequivocally resigned.

The Court in Johal concluded that, when viewed in context, a reasonable person would have concluded that Johal had not voluntarily resigned her employment. There were a host of factors that the Court pointed to in order to support its conclusion among others:

  • The Plaintiff  was 62 years of age;
  • She had been employed with the firm for 27 years;
  • Her employment was close to her residence;
  • She was called into a meeting without any particular notice;
  • The information she received in the meeting was oral;
  • The information about the plan going forward had not been finalized;
  • There was an indication that the Plaintiff would be working with Ms. Forsythe with whom she did not particularly get along, a fact known to Mr. Clark;
  • Neither Mr. Clark nor anyone at the management level of the firm attempted to contact the Plaintiff at any time after June;
  • In all likelihood, the Plaintiff would not have had a job immediately available to her;
  • She did not provide the firm with written notice or even verbally state that she was quitting/resigning;
  • She did not provide the firm with even a minimal two-week notice period; and
  • Her sudden departure was out of character.

Although some of these may be more relevant than others, the Court stated:

While I agree with the Defendant that it does not owe a paternalistic duty to the Plaintiff, on the facts of this case, it was required to do more to determine the Plaintiff’s true and unequivocal intention… As stated in the Evans case, the circumstances here cried out for further inquiry by the Defendant.

The Court, ultimately, held that Joyal had not voluntarily and unequivocally resigned and, as such, had been terminated without just cause. The amount of damages was left to the parties to sort out, failing which, the court would schedule a trial.

This case is another reminder that haste proves costly. Patience in the employment relationship, particularly in circumstances that are out of character or where emotions are involved, is critically important.