Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. Photo: Contributed

Kootnekoff: ‘I am out of here’

When is a resignation from a workplace valid?

Sometimes tensions rise in the workplace and someone storms out the door in the heat of the moment.

Other times, an employee repeatedly fails to show up for work, without providing an explanation. Or, an employer makes the workplace so intolerable for a particular employee that he or she has little real choice but to “resign.”

When is a resignation valid?

To be valid, a resignation must be made freely and voluntarily. It must also be clear and unequivocal.

In Canada, the employment relationship is a contractual one. The employer pays the employee in exchange for the employee’s work.

When an employee leaves work without permission, and it is unclear when he or she plans to return, an employer sometimes wishes to take the position that the employee has quit, abandoned the employment or otherwise repudiated the contract.

The idea is that if the employee is not working, then the essential thing that the employer was contracting for is now gone. The subject matter of the contract no longer exists.

The beauty of this argument from the employer’s perspective is that if it is successful, the employer need not pay the employee a severance payment.

However, this argument can be fraught with pitfalls.

An employee who storms out may take the position that he or she was only cooling off before returning to work. Alternatively, he or she may take the position that the departure was involuntary, and amounted to constructive dismissal. If just cause did not exist, the employee is generally entitled to a severance.

Constructive dismissal arises when an employee claims that even though the employer did not expressly dismiss the employee, the employer’s actions amount to a repudiation of the employment contract.

Although there are exceptions, being absent from work for health reasons does not normally constitute abandonment. An employer who wants to take this position had better brush up on human rights law and employment law first! It is not uncommon for an employer to mistakenly believe an employee is fit to return to work when this is in fact not so.

To determine whether an employee resigned or was dismissed, the court must assess the actions and statements of the parties within the context of the specific workplace and all relevant surrounding circumstances.

Even when an employee may have resigned, he or she is able to retract it. For example, an employee may retract a resignation if the employer has not acted to its detriment, such as by hiring a new employee into that role. Once an employee retracts a resignation, the employer can not then opt to accept the resignation.

Demanding that an employee resign, or giving the employee a “choice” to resign or be dismissed are generally equivalent to a dismissal because the employee is not acting out of free will.

If an employee resigns under duress, this generally means the employee is not acting voluntarily. The result is that the “resignation” is not legally valid. Instead, the employer may have constructively dismissed the employee.

A forced retirement may also amount to constructive dismissal.

In one B.C. case, an employee stormed out, said he was quitting, and was absent from work for two weeks. The board of directors immediately accepted his resignation. The court held that the employee did not voluntarily resign but was instead dismissed.

Though this cannot be assured in every case, there are other B.C. cases with a similar result.

If you walk off the job in a moment of frustration, consider immediately advising the employer in writing that you will be returning to work.

If you are the employer of someone who has walked off the job in the heat of the moment, be aware that this may not be a valid resignation. Avoid assuming that it is until you have gathered more information and have adequate documentation.

The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Specialist advice from a qualified legal professional should be sought about your specific circumstances.

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