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The continued reopening of public and private sector organizations is without doubt a positive and sorely needed step towards economic recovery. While critical, this process will not be without its challenges. Specifically, there is a significant risk of workplace tension as employers and employees negotiate return to work, including valid concerns relating to workplace safety. 

Some of these discussions will lead to conflict and frustration on the part of both employers and employees, resulting (in some cases) in terminations or, conversely, spontaneous “walkouts” or, in other words, resignations.

To assist, we wanted to provide some helpful guidance respecting how Canadian/provincial law interprets resignations, particularly ones that are carried out with little to no warning and/or in response to deep-seated frustration/anger, which, for the purpose of this article, we are calling “heat of the moment” resignations.

What is a “heat of the moment” resignation?

A “heat of the moment” resignation is one that occurs unexpectedly, and most often when an employee is experiencing emotional distress.

A heat of the moment resignation can occur in a few of different ways, including:

  • When an employee says “I quit” when tensions are running high, (often followed by a quick retraction of their statement)
  • When an employee claims they quit but continues to perform their regular duties and does not actually provide their employer with written notice of resignation.

The tension stemming from the severe and prolonged disruption of COVID-19 to workers and their families, both economically and in terms of health security, means we will likely see an increase in these kinds of resignations.

Having said this, courts may determine that many or all of these resignations are unenforceable. This is because, in making this determination, courts are required to first determine whether there is a clear statement and intention of the employee to resign, apart from any emotional factors.

Employees would accordingly be wise to review their circumstances with an employment lawyer before resigning in the heat of the moment as, depending on the employment-related matter, there may be an opportunity for a severance payout and/or compensation relating to bad faith treatment and/or wrongful dismissal.

Can employees retract their resignation if it was made in the heat of the moment?

For a resignation to be considered valid and enforceable, the resignation must be clear and unequivocal. This essentially means that that there is no doubt that the employee’s intention is to resign. This suggests that an employee should make a clear statement that they will be resigning from their position, and ideally this statement would be followed up on in writing.

However, even if an employee makes a statement indicating their desire to resign in the heat of the moment, it technically is possible for the employee to rescind their resignation.

Specifically, in a situation where an employee provides a heat of the moment resignation, employers should give the employee a “cooling off period” to determine whether the employee truly meant to resign. If an employee decides shortly after providing their resignation to take it back, they are legally entitled to do so, and employers have a positive obligation to allow the employee to continue to work.

Case law supports this position. For example, in the case of English v Manulife Financial Corporation, it was found that even in a situation where an employee provides a written notice of resignation, the resignation could be found unenforceable if the facts pertaining to the matter undermines the validity of the resignation.

How can employers handle a heat of the moment resignation?

If an employee has given their resignation in the heat of the moment, employers should strongly consider providing the employee with time for them to fully consider their decision, or a “cooling off period”, as described above. Employers can then follow up with the employee by inquiring about their decision to resign.

A process of investigating the resignation and clear conversations with the employee regarding their intentions can help to reduce the chance of wasteful conflict and/or litigation.   

Employers should be careful not to insist that an employee has resigned based on a heat of the moment resignation, as this may lead to liability for damages related to wrongful dismissal. Similarly, employees should not feel bullied into accepting their employer’s opinion that they have resigned if in fact the circumstances match those of a “heat of the moment” decision, which they soon after regret and may wish to rescind.

If you have provided a heat of the moment resignation and have now tried to rescind your decision but your employer is not allowing you to do so, or if you are an employer and would like to further understand how to handle heat of the moment resignations, including in relation to severance, bad faith and/or wrongful dismissal, contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com


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