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The issue of when an employee is deemed to have resigned is not always as clear as it seems.  A recent case from the Ontario Superior Court of Justice – Johal v Simmons da Silva LLP – is a helpful reminder of the principle that notices of resignation must be clear and unequivocal.

The case involved an employee who worked as a law clerk at a law firm for approximately 27 years.  The day following a meeting in which changes to the firm structure were announced, the clerk took her things, handed her security pass to a partner of the firm, and left. She did not return to work that day, a Friday, or the next Monday.

The firm subsequently contacted the employee via letter to accept what they deemed to be her resignation.  The employee responded via email stating that she wished to withdraw her notice of resignation.  The employer refused this request, in part on the basis that the announcement of her departure was already made.

At trial, the court ruled that the employee’s resignation was not effective.  In reaching this conclusion, the court pointed to a range of findings, including that she was a long-service employee, that she never stated clearly that she was resigning, that the employer did not take any meaningful steps to assess the genuineness of the resignation, and that the resignation took place so quickly after an announcement of major changes to the firm structure.

The case makes clear that one should not assume that a resignation has taken place, whether as an employer or an employee just because someone has walked out.  Rather, it will depend on the facts of each case, including whether sufficient time has been provided such that it is clear the employee is making a voluntary and sober decision.


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