Involuntary vs Voluntary Resignations
Voluntary and involuntary resignations are not the same. These legal concepts may make a big difference when it comes to the entitlements of employees.
The manner by which a resignation occurs is important, as it determines the type entitlements the employee receives once their resignation takes place. If a resignation is voluntary, an employee is not entitled to employment insurance or termination pay.
This article outlines the factors to keep in mind when dealing with resignations in your workplace.
Are Involuntary Resignations and Constructive Dismissal Connected?
An involuntary resignation typically occurs when an employee chooses to remove themselves from the workplace for reasons that were initiated by the employer or the workplace, and not the employee themselves.
Some reasons why an employee may choose to resign involuntarily include changes to fundamental terms of their employment, including their job duties, tasks, or wages, and workplace harassment which pushes them out of the workplace.
Any situation where an employee feels pressure to resign will bring the validity of their resignation into question.
Involuntary resignations usually result in constructive dismissal claims, which carry the same liability for the employer had they wrongfully dismissed the employee.
What Are Voluntary Resignations?
There are many ways to ensure a resignation is valid. As an employee, voluntary resignations are considered when they are accepting a new job, changing career paths, or simply leaving the workplace environment—in all cases, an employer should have a resignation reviewed objectively to understand their obligations and next steps.
All purposeful resignations should be clear and unequivocal, carefully structured, in writing, and provide a reasonable notice period.
When an employee provides a resignation without reasonable notice, it can be considered a wrongful resignation. An employer has the right to claim a wrongful resignation against a former employee if the employer suffered a loss due to the lack of a reasonable notice period.
Can I Retract a Resignation?
Resigning in the heat of the moment is a tricky situation for employers and employees alike. It might be an employee’s intention to resign at that very moment, but after they have cooled down, they might have a change of heart. Whether an employee is able to retract the resignation depends on the circumstance.
Generally, the employees may retract a resignation soon after they resign, as the employer should provide the employee a grace period to “cool down”. The longer the employee waits to retract the resignation, the more difficult it will be to argue that they did not in fact resign.
Other factors to consider when determining whether a resignation can be retracted include the employee’s use of ambiguous language, behavior, coercion, provocation, or false information that entices a resignation.
In English v Manulife Financial Corporation (2019), the Ontario Court of Appeal found that an employee who is given the option to rescind or reconsider their decision to resign by their employer, either verbally or in writing, is able to rescind their resignation even if their initial resignation was clear and unequivocal, provided in writing, and with appropriate notice.
As such, employers should ensure they have a clear process established to handle resignations, and should consult a lawyer prior to merely accepting an employee’s resignation. To merely take an employee’s word—when it comes to resignations—is a mistake which might cost the employer more in damages.