It can be somewhat of a tricky task to determine what constitutes resignation by an employee, as an employer learned in the recent court decision of Johal v. Simmons da Silva LLP.
In this case, the employee Plaintiff, Ms. Johal, worked for the Defendant law firm, Simmons da Silva LLP (the “Firm”), for 27 years as a law clerk. Ms. Johal was the primary law clerk of the firm’s lawyer, Mr. Clark. In June 2015, another law clerk, Ms. Forsythe, announced that she would be returning to the firm from maternity leave. To this end, on June 3, 2015, Mr. Clark held a meeting with Ms. Johal and an HR Manager, to inform Ms. Johal that although her role would remain the same, Ms. Forsythe would be assisting her with her duties upon her return from maternity leave. This arrangement upset Ms. Johal, who took from the meeting that she would now be reporting to Ms. Forsythe. Ms. Johal and Ms. Forsythe previously did not get along.
The next day, Ms. Johal came to work and removed all her personal belongings from the office, placed her security pass on Mr. Clark’s desk, and left the office. Ms. Johal never returned.
Following this, no one from the Firm contacted Ms. Johal until four days later, when the firm sent her a letter “accepting” her alleged resignation.
Subsequently, Ms. Johal sued for wrongful dismissal, arguing that she did not resign.
Did Ms. Johal resign?
The Court in Johal considered the case of Gebreselassie v. VCR Active Media Ltd., wherein that court addressed the issue of what constitutes a resignation. The court in Gebreselassie stated (emphasis added):
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 acknowledged that “a resignation during a spontaneous outburst in highly charged emotional circumstances can undermine its essential voluntariness”.
The Court in Johal also considered whether Ms. Johal has withdrawn her resignation after the fact, citing the Court of Appeal in Kieran v. Ingram Micro Inc., which stated:
… 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 considered the following factors in making its conclusion:
- Ms. Johal 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;
- There was an indication that she would be working with Ms. Forsythe, with whom she did not particularly get along, a fact known to Mr. Clark;
- No one at the Firm attempted to contact her at any time after June 4, 2015 until June 8, 2015;
- She did not provide the firm with written notice or even verbally state that she was resigning;
- She did not provide the firm with even a minimal two-week notice period; and
- Her sudden departure was out of character.
Having considered the legal principles, the Court in Johal concluded that, when viewed in context, a reasonable person would have concluded that Ms. Johal had not voluntarily resigned her employment. Further, the Firm could not have reasonably viewed the Plaintiff’s action as a voluntary resignation without, at least, some investigation. Thus, the Court found that Ms. Johal 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.
Johal reminds employers to be aware that they may have an obligation to follow-up with employees to determine their true intentions in the face of an apparent resignation, especially in circumstances that are out of character or where “heat of the moment” emotions are involved. An immediate written inquiry from an employer followed by a written confirmation of resignation from the employee would likely suffice, depending on the circumstances.
Our team at Monkhouse Law has the experience and the expertise to navigate you through resignations, and other issues that may arise in the workplace. Contact us now for a consultation.
About the Author: Miguel Mangalindan is an associate lawyer at Monkhouse Law where he practices Employment, Human Rights and Disability Insurance Law. To arrange your free confidential 30 minute phone consultation make sure to contact us today. ]]>]]>