I thought you quit

“I thought you quit?”
Agenda
1. What is a resignation?
2. Essential considerations before accepting a
resignation
3. Pitfalls of resignations
4. Employer obligations following a resignation
5. Retirements and the Human Rights Code
Proper handling of resignations and retirements
George A. Leibbrandt, Partner

• Resignation: “Formal renouncement or
relinquishment of an office. It must be made
with intention of relinquishing the office
accompanied by the act of relinquishment”.
- [Black’s Law Dictionary]
(1)Evincing an intention to resign; followed by
(2)An action consistent with that intention;

• Example:
– University undergoes organizational change
– Director of Relations writes to resident stating
that he believes the change to be a demotion and
that he will be seeking other employment
– President treats letter as a resignation despite
Director’s insistence that he was not resigning
– Is this a resignation?

• Not a resignation
• The Director made it clear after the letter had
been sent that he was not resigning
– No clear unequivocal intention of resigning
• Held to be a termination without cause
• See: Moore v. University of Western Ontario,
1985 CarswellOnt 877

Retirement: “Termination of employment,
service, trade or occupation upon reaching
retirement age, or earlier at election of
employee, self-employed, or professional”.
- [Black’s Law Dictionary]

a) How did the employee resign?
– Always get a signed and dated letter!
– Letter should confirm that the resignation is
voluntary
– Letter should confirm actual date of resignation
2. Essential Considerations before
accepting a resignation

b) The Facts are Everything
- Long service or short-service employee?
-Has anything major occurred in period immediately
preceding resignation?
-Has the employee’s salary and/or job
responsibilities recently been altered?
-Would an objective observer consider the employee
to be sophisticated?

c) Does Contract specify employee notice
required?
- Employee needs to provide “reasonable notice” of
resignation if contract is silent
- Note: notice that employee has to provide is not
the same amount of notice that an employer
dismissing an employee would have to provide

c) Does Contract specify employee notice
required?
• Blackberry Limited v. Marineau-Mes, 2014
ONSC 1790 (CanLII):
- Contract stated that employee had to provide six
(6) months notice before resigning
- Employee was leaving to join Apple Inc. and only
provided two (2) months notice
- ONSC upheld the six (6) month notice period in
the contract

c) Does Contract specify period of notice
•Asphalte Desjardins inc. c. Commission des
normes du travail:
- Contract specified employee notice required
- Employee provided notice required
- Employer “waived” notice to accelerate departure
and stop paying
- Legitimate? Stay tuned: Supreme Court of Canada
to decide
2. Essential Considerations before accepting a
resignation

d) Was this a resignation or a retirement?
- Retirement should be treated separately from an
ordinary resignation

a) Employee silence
b) Mixed messages
c) “Spur of the moment” decisions
d) Notice of resignation too short, too long
3. Pitfalls of Resignation

3. Pitfalls of Resignation –
a) Employee Silence
• Where the employer does not hear anything
from the employee
– i.e. the employee does not show up for work
• A resignation falls within the exclusive
purview of the employee
– Cannot be “deemed” by the employer

• If employee is not responding or doesn’t show
up for work, employer needs to act with
utmost fairness
• Proper response: write clearly worded letter
• If no communication received by employee by specified
date, then employer will assume job abandonment
• Make sure letter is received
• If long-service employee, consider sending 2nd
letter
a) Employee Silence

• Lack of clarity
– There needs to be clear and unequivocal
evidence that the employee has intended to
resign
– No conditions should be attached to the
resignation
b) Mixed Messages

• “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 [the employee] to have
unequivocally resigned”.
– See: Kieran v. Ingram Micro Inc. 2004 CanLII 4852
(ONCA)
b) Mixed Messages

• In Kieran v. Ingram Micro Inc., the Plaintiff
stated that he couldn’t work at the company’s
current location if X employee was named as
the new President
• X was named as the new President and the
employer treated the Plaintiff’s statement as a
resignation
• Ontario Court of Appeal held that the Plaintiff
was terminated without cause
b) Mixed Messages

• Justice Lang writing for the ONCA: “In those
circumstances, given the principle that a
resignation must be clear and unequivocal, it
cannot be said that Mr. Kieran’s statements
amounted to a resignation. Viewing his
statements contextually, Mr. Kieran did not
resign, and would not have been seen by a
reasonable person to have done so”.
b) Mixed Messages

• Another Example:
– Car salesman refuses to sign sales agreement
which restricts his commission
– Employer tells car salesman to sign agreement or
he will be terminated
– Car salesman still refuses to sign and does not
return to the workplace
– Is this a resignation?
b) Mixed Messages

• Court holds that employee was terminated
without cause
– No unequivocal voluntary action to resign
• Court awards compensation
• See: Gallagher v. John Bear Pontiac Buick
Cadillac Ltd., 2006 CarswellOnt 409 (S.C.J.)
b) Mixed Messages

• A resignation during a spontaneous outburst
in highly charged emotional circumstances can
undermine its essential voluntariness
– See: Wilson v. Legacy Trust, 2014 ONSC 2070
• Moreover, sometimes an employee’s actions
are equivocal such that his actions canvassed
cannot be construed as a voluntary
resignation
C) “Spur of the Moment” Decisions

• Example:
– Employee with 26 years of service submitted
resignation on April 2, 2012
– On April 16, 2012, employee verbally advised
employer that he wanted to rescind resignation
– This was followed by a letter confirming the same
on April 20, 2012
– Employer refused to allow employee to rescind
resignation

• Arbitrator considered contextual factors:
– Long-service employee
– Tried to rescind resignation soon after employee
resigned
– Employee suffered from severe depression
• Employee was off his medication
– Employee recently went through a divorce
– Employee recently declared bankruptcy

• Arbitrator held that the employee did not have
the subjective intent to resign from his position
– The employee (unionized) was reinstated to his
position
– The employee was also awarded 4 months of
compensation, subject to mitigation
• See: Re Community Living Chatham-Kent and
OPSEU, Local 148 (Butler), 2014 CarswellOnt
1126 (Steinberg)

• Where the evidence will show that the
employee was led to believe that he/she had
to resign/retire
• Example: employer tells employee that she
can resign or be fired and employee
subsequently resigns
– Is this a voluntary resignation?
C) Employer compelled resignation

• No!
• If an employer tells an employee to quit or be
fired, this is an involuntary resignation and will
be treated as a termination
– See for example: Aubin v. H.B. Group Insurance
Management Ltd. (1987) 62 O.R. (2d) 191
C) Employer compelled resignation

• Up until the effective date of the resignation,
the employer must:
– Continue to pay the employee regular wages;
– Continue the employee’s benefits coverage (if
applicable); and
– Pay the employee all accrued but unused vacation
4. Employer obligations following a
resignation

• Other considerations:
– An employee can still be dismissed for cause
during a resignation notice period
– An employee can still be constructively dismissed
during an employee notice period
– Employment Standards Act, 2000, sections 56(1)
(b), 63(1)(b), 63(1)e and 63(3)
4. Employer obligations following a
resignation

• Before: “age” in the OHRC was defined as
between 18-65
– Result of this was that an employer could create
mandatory retirement policies and not violate the
OHRC
• Change on Dec. 12, 2006: “age” in the OHRC
amended to be just 18 years+
– The result is that most mandatory retirement
policies will violate the OHRC
Retirement and the Ontario Human Rights
Code (“OHRC”)

• Can an employer have a mandatory
retirement policy that doesn’t violate the
OHRC?
– Yes, but only if the policy can be shown to be a
“bona fide occupational requirement”
• Employers can also develop “retirement
programs” that aren’t mandatory
Retirement and the Ontario Human Rights
Code (“OHRC”)

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