“I quit”

What happens when a person quits his or her employment? Typically, quitting is a voluntary act of the employee. Perhaps a better job is found, perhaps a move to a different city is in the works, perhaps marriage or winning the lottery or some other event occurs that leads to the employee giving notice of the end of the employment. These are examples of the classic case of voluntary resignation or quitting. Normally, a voluntary resignation is effective in terminating the employment at the employee’s behest, leaving the employee without the typical bundle of rights a wrongfully dismissed employee has. A voluntary resignation is a complete defence in favour of the employer to any wrongful dismissal claim made by the employee.

Obviously then, because it is a complete defence, it is not uncommon to see employers who think they have the facts to do so and, sued for wrongful dismissal by a departed employee, attempt to argue that the employment ended via a voluntary resignation of the employee as opposed to a dismissal by the employer. After all, the burden of proving that a dismissal occurred rests with the employee, but the burden of proof that a voluntary resignation occurred is on the employer. He who alleges must prove. The battle is on.

But there arise situations where the quitting or resignation is anything but voluntary on the employee’s part. For instance, the following are common patterns of involuntary resignation.

The employee suffered some trauma and, in a state of temporary emotional pique or heat of the moment, utters the words “I quit.” In a more sober moment, the employee attempts to recant the words, but the boss seizes the words and holds them against the employee and ignores the employee’s recanting, for whatever reason, and the employment ends on that basis; or the employee issues words or reacts to something ambiguously, but the boss takes it as a resignation and acts on it; or, as happens on occasion, the boss confronts the employee with something, threatens dismissal for cause, but offers the employee the chance to quit voluntarily so as to avoid the mark of dismissal. The employee, so coerced, “resigns.” An employee in these sorts of circumstances may attempt to claim, as part of a wrongful dismissal lawsuit, that a resignation was involuntary and therefore should not count as the means to end the employment.

In termination circumstances that are unclear because the employee is claiming a dismissal due to an involuntary resignation, and the employer is claiming a voluntary resignation and thus no dismissal, the court will look at the overall circumstances of the parties at the point of termination, and may also be informed by post-termination circumstances. A simple example of post-termination circumstances are where the employer fills out a record of employment that indicates a dismissal. This would be inconsistent with a resignation.

A classic legal decision on the topic of resignation is found in Assouline v. Ogivar, a B.C. case from 1991. In that case, the employee complained that he had not received commission from a large sale, and a heated discussion ensued between the employee and the employer. In a moment of frustration, the employee exclaimed that he could not continue to work for a company that did not honour the employment contract. The employer took this statement as a resignation, locked the employee out of his office and advised him his resignation had been accepted. The court examined the surrounding circumstances, including the verbal dispute that erupted and the fact that a number of employees had the same problem and were discussing it, and concluded that there was no voluntary resignation, rather it was a statement of potential future options.

The test the court uses in resignation cases is an objective one. Given all the surrounding circumstances, would a reasonable person understand by the employee’s statement that he had just resigned?

In another recent case, a 20-year employee suddenly came under investigation for alleged inappropriate behaviour, and the boss confronted the employee and told him he was going to be dismissed tomorrow for cause based on the investigation unless he chose before then to resign. The boss told the employee it was in his best interests to resign, to avoid the embarrassment of a termination for cause. The boss also relieved the employee of his duties as of that moment. The employee resigned and the next day circulated an e-mail entitled “happy resignation day,” mocking the circumstances of his “resignation.” The court had no difficulty in finding the resignation was a coerced one and therefore not voluntary. Instead, the court found a dismissal had occurred. The decision to terminate employment had already essentially been taken by the employer, and the resignation was simply a ruse, a convenient escape for the employer.

A resignation, to be effective in ending the employment in a way that allows the employer to escape liability for a dismissal, must be a voluntary resignation in all the surrounding circumstances.

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