Toronto Mayor, John Tory’s, extra-marital affair with a staff employee generated a lot of interesting discussion about the appropriateness of romances in the workplace. As is typical in such cases, there were those who immediately regarded the conduct as warranting summary banishment to the wastelands of obscurity and shame. Others – having taken a more nuanced approach – concluded that the affair, while a lapse in moral judgment, was a private matter between consenting adults which is best left to be dealt with by the parties directly affected: the individual involved, Mr. Tory and his family.
Mr. Tory; on his part, took the responsible step of not making excuses and went on to advise the public that he would be resigning from his role as mayor, although at the time of making the pronouncement the resignation effect date remained unknown, at least to the public (we now know that it would have been February 16, 2023). Moreover, following the Mayor’s assertion of his intention to resign, voices started to emerge questioning whether he should be resigning in the first place. Perhaps, he should consider keeping his role after all? If so, could he have taken his resignation back or was it a done deal and it was simply too late, legally speaking?
This question, although far less salacious than the impetus behind the Mayor’s resignation, creates an interesting legal conundrum in employment law – if an employee resigns then at what point does it become binding? What constitutes a resignation anyway? What if the employee, having been employed for, say, 30 years, yells “I quit” in a burst of built-up frustration on a Friday afternoon only to resile from the resignation on Monday morning. Can their boss still rely on the resignation or is there some leeway in the law?
In 2019, our firm was fortunate to argue a case involving a client who tendered her resignation in writing. However, when tendering the resignation, our client expressed that she was not sure about the resignation and was advised by her supervisor that she could rescind it if she changed her mind. When she did decide to change her mind on a later date, her employer insisted on the resignation. As a result, we were retained to represent our client in a wrongful dismissal claim. The summary motion judge found that the resignation was binding, the rescission ineffective and dismissed our client’s action. Our client successfully appealed to the Ontario Court of Appeal, and the Court confirmed that for a resignation to be legally binding it must be clear and unequivocal thereby overturning the lower court’s decision. If you are interested in reading the decision click here.
What is the law, then, when it comes to resignation in Ontario? As is usually the case, the analysis is contextual and far more nuanced than it initially appears.
First of all, a resignation has to be clear and unequivocal. This means that if you’re “sort of resigning” such as displaying uncertainty or acting “on the fence,” the resignation will not be binding and it cannot be used against you.
Secondly, chatting with your colleagues or even boss about a future intention to resign without a clear date, will not create a biding resignation.
Thirdly, the proverbial heat-of-the-moment “I quit!” may not be binding. Employees are entitled to a “cooling off” period and an employer cannot capitalize on the opportunity, however tempting it may be.
Fourthly, it takes two to resign. Quitting is a transaction the purpose of which is to bring an employment relationship at to an end. In consequence, a resignation must (a) be communicated and (b) accepted. Absence an acceptance, a resignation is not binding at law. Likewise, a person is free to rescind their resignation on a future date if the employer tells them that they can do so.
What remains to be developed in the jurisprudence (and what the Court of Appeal did not address in our client’s case) is whether an employee is entitled to resile from a clear and unequivocal resignation after it was actually accepted. There are strong public policy reasons in favour of the principle that an employee should be able to do so, so long as the employer does not detrimentally rely on the resignation. For instance, if following acceptance of a resignation, the employer has hired a replacement or sufficiently long time has elapsed from the moment the resignation was accepted then changing one’s mind about the resignation would likely be too late for the rescission to be legally defensible. Otherwise, it seems fair that an employee should be given an opportunity to withdraw their resignation.
Mr. Tory’s case is unfortunate and he has spared the City of Toronto a period of controversy and unrest that would have followed had he stayed in office. Still, the days following his intended resignation brought to mind an interesting side issue in the employment law context that was worth noting.