We have written here about your entitlements to a notice period or payment in lieu of a notice period when terminated without cause. What about Resignations?
However, a resignation, if it is a true resignation, is the death sentence of your entitlement to reasonable notice.
This means, if you resign, you may be forfeiting your right to a notice period.
There are obviously exceptions, such as if you resigned because of duress, bullying, harassment, or if the resignation was “in the heat of the moment”.
First, what is a resignation?
A resignation happens when an employee decides that they no longer with to work for their employer and do not want to be bound with the employment contract (whether written or verbal) that they are a part of.
This is done by the employee communicating, verbally or in writing, that they quit.
Employees can give a notice period with the resignation, i.e. notify their employer that at the end of the month, they wish to no longer be bound by the contract. However, resignations could be also done effective immediately, provided it is allowed by your employment contract, or if you feel unsafe, bullied or harassed at the workplace.
In some circumstances, refusing to perform tasks and duties at your workplace, provided you have no safety concerns, could be found as a constructive resignation. This is when the employee, through their conduct, demonstrates insubordination, or refusal to work their regular tasks.
Resignations can also be done by the employee effectively not showing up to work, without a medical note, and without responding to their employer’s efforts to understand the employee’s continued absence. This may be deemed a resignation but also willful misconduct in neglecting employee duties. Absences, even when unexplained, sometimes have exceptions so make sure to consult a lawyer before acting.
When is a resignation effective?
The Courts have had to render decisions about the effectiveness of a resignation. An example is: an employee resigned out of anger or frustration, employers now think they do not have to pay a termination package until the employee hires a lawyer who digs into the circumstances of the resignation.
Courts have determined that if a resignation is made from frustration, anger, bullying, harassment, or in the heat of the moment because of some pressures, the resignation may in fact not be effective, and the employee may be entitled to either a termination package or the retraction of their resignation. The Courts will consider the intention of the employee to examine if the employee really “meant it”.
This also means that if the employer tells the employee to resign or risk the chance of getting fired, then the resignation may be effectively a termination by the employer and the employer may be liable to pay compensation for the employer.
When can employees withdraw their resignation?
An employee may withdraw their resignation if he communicates the withdrawal within a reasonable period and if the employer has not acted to its detriment on the basis of the resignation. This means if an employee resigns, and at the end of the day, they say that they “take back” the resignation, and the employer has not hired someone in the meantime or made substantial or costly changes to accommodate the employee’s departure, the employee may be able to successfully regain their employment.
If the employee resigns and retracts their resignation after a month and after the employer has made changes that affect its business to cope with the resignation, then the employee may have a difficult time to prove that they are entitled to their jobs back.
Can an employer sue you for quitting without providing a notice period?
Potentially, yes; however, the employer must prove that they suffered actual losses from the employee’s departure.
While this is extremely difficult to prove where the employees have other coworkers with them and the work could be completed despite the departure, some employees should be extremely careful about quitting without notice since it may subject the employer to losses potentially recoverable from the departed employee.
If you are an employee and have questions about your rights to terminate your own contract, contact us today. We can help with examining the events that led up to you wanting to terminate your contract. Reviewing and understanding the events that led to your resignation or desire to resign can help in better determining what options you have available to you.
If you are an employer who wants to know your rights when it comes to an employee resigning, contact us to devise a plan regarding this resigning employee. Not all resignations are effective and you may be found liable to compensate a resigning employee if you do not take the correct steps.