Resignations (2004)
In most constructive dismissal situations an employee is forced to resign. Many employees who find themselves in an untenable situation at work are afraid that if they resign they will prejudice their claim for damages for constructive dismissal. Let us look at how the common law views a “resignation” within the employment context.
The common law test for resignation is an objective test. “Objective” means what an outsider would consider to be a resignation as opposed to what the employee considered. The question to ask then is, given all the circumstances in the case, would a reasonable person have understood by the employee’s statement “I quit” that the employee had in fact resigned? For an employer to successfully argue that the employee had resigned, the evidence must be clear and unequivocal that the employee freely and voluntarily resigned. When faced with a client who says he “resigned” I ask him/her whether they intended to resign or put differently, would they have resigned if the difficult situation had not occurred? This often reveals the motives behind the so-called resignation.
A review of case law shows us that it is not easy to be found to have resigned. For example, an emotional outburst “I quit” by an 11-year employee was not sufficient to terminate the employment relationship. An employee who said that he no longer wished to serve in the position and would be seeking alternative employment was found not to have resigned. Handing in company property is strong indicia of resignation but the court in one case stated that that act must not be viewed in isolation to the rest of the circumstances. A lawyer’s letter arguing constructive dismissal was not found to amount to the employee’s resignation. In another case, the employee’s declaration “Don’t worry about me. I will be leaving when the appropriate times comes” did not amount to a resignation at the time the statement was made.
There is authority that at trial, the onus is upon the employer to prove that the employee freely and voluntarily resigned. An employer’s demand for an employee’s resignation amounts to a constructive dismissal. In that case, the onus lay on the employee to prove that the employer repudiated the employment contract by improperly demanding the resignation. A resignation garnered through duress and undue pressure is not enforceable. In one case, an employer forced an employee to sign a resignation letter. This was held not to amount to a resignation.
If you find yourself at work being forced to resign or sign a resignation letter, or wondering whether your resignation will prejudice your ability to claim that you were dismissed, try to call me before you do. In most case of a force quit, the court will find that the resignation was not free and voluntary and instead, that you were dismissed.
