chap 12

• Employee resignation


  Three important preliminary points:
• Employer should ask employees who wish to resign


  Do so in writing by letter
• Employer should formally accept an employee's resignation


  In writing and respond with a letter of its own confirming the resignation
• Employer should probably allow a "cooling-off" period


  For employees who quit after a bad day at work or following an emotional outburst in the workplace
• Employee's entitlements on a voluntary resignation

  • No wrongful dismissal damages (unless dealing with constructive dismissal, forced resignation, or improperly handled resignation)
  • No entitlement to EI benefits
  • Outstanding wages
  • Vacation pay
  • Overtime pay
• Equivocal or ambiguous conduct from an employee is not enough to infer resignation (to be legally effective, a resignation must be "clear and unequivocal")
• Examples of equivocal conduct


  • An employee is overheard stating that he plans to leave his job as soon as she can
  • An employee is overheard stating that he is looking for another job and cannot wait to leave the company
• The second memo in the Pollock case didn't indicate an unequivocal notice of resignation – employees indicated that they were willing to continue working under the existing terms of employment and didn't clearly communicate that they were quitting
• Gilbert didn't have enough information to make an informed decision as to whether to resign – his intention to resigned could not be fairly inferred from his failure to show up to the workplace on the date specified by the employer
• Resignations given when emotions are running high can be withdrawn later, when emotions have cooled off (but certainly an affirmation of the resignation at that point would seem to seal the employee's fate)
• While the notice of resignation in the Reid case was "clear and unequivocal", Reid was a valued employee and was experiencing a period of emotional vulnerability due to a series of personal setbacks and came to a decision to resign as the only course of action available to her
• The employer should have communicated with the employee and sought an explanation for her abrupt and unexpected departure before accepting and confirming her resignation
• Even though the court didn't find that Reid had been constructively dismissed, her withdrawal of her resignation was bona fide and the employer's refusal to accept the withdrawal constituted dismissal without cause for which the plaintiff is entitled to damages in lieu of notice
• Working notice, resignation notices

  If employer fires employee during the working notice period without "clear cause", it is possible the employer may have to pay the employee wrongful dismissal damages based on the employee's entire length of service with no credit given for the working notice period
• Duration of notice of resignation

  • A notice of resignation is usually for a significantly lesser period of time than what an employer has to provide an employee for a notice of termination
  • It can range from a low of two weeks (under a company's workplace policies) to a significantly longer period at common law
  • The length of notice will depend on the expected length of time that it will take the employer to recruit and train a replacement, on the employee's duties, and on the industry practice
  • Key employees with technical and intimate knowledge of the business will sometimes need to provide employers with as much as 10 months' notice of resignation or face a heavy damage award
• In most workplaces, company policies requiring an employee to retire at the age of 65 are considered discriminatory on the basis of age
• BFOR exception


  Retirement can still be imposed as a BFOR (Bona Fide Occupational Requirement) without violating the Human Rights Code