An employer needs to consider several things when they are in receipt of a resignation from an employee in order to try to avoid any unintended legal obstacles that may arise from the resignation.

The first thing that an employer should do upon hearing that the employee is resigning, is ask that the employee confirm the employee’s resignation in writing if the employee has not done so. This is to provide clarity and to prevent any miscommunications relating to the employee’s intention to resign and when they expect to leave the employment relationship. A resignation is an action of an employee that holds legal significance for both the employee and employer, so it is important to try to remove any misunderstandings between the parties as much as possible. In Ontario, employees will typically owe their employer a limited resignation notice at common law. However, more senior executives or key employees may owe their employer a lengthier notice of resignation.

The employer should not in any way pressure the employee to resign. The resignation should be given freely and voluntarily by the employee. The employer should then accept the resignation and act in good faith upon receipt of the resignation letter. An issue may arise when an employer attempts to change the terms contained in the resignation letter or the employee’s terms of employment or act in way that is retaliatory due to the resignation. In those situations, the employee may then have a claim that despite their resignation, they were actually terminated from their employment based on the actions of the employer and therefore they should be compensated for their wrongful dismissal.

Another common issue is when an employee “resigns” during a moment that was emotionally taxing for the employee. The employee’s statements and actions will need to be looked at during the time of the resignation to see if the resignation is clear and unequivocal. If the resignation took place during a time period in which the resignation was “in the heat of the moment,” then it will be unlikely that the resignation will be considered to be unequivocal. Employers in this case will need to make an analysis to determine why these statements by the employee were made and the employer may need to take certain actions in order to meet certain obligations and avoid some legal obstacles such as claims by the employee that despite their resignation, they were actually dismissed and that they should be compensated for their wrongful dismissal.

Employers should also note that employees are able to rescind their resignation in certain situations. For example, if the employer has not accepted the resignation, then the employee may be able to rescind their resignation. There is some argument to be made that if the employer did not rely on the resignation to their detriment, then the resignation may be rescinded, but the case law needs more clarity on this issue.

Employers should also be aware that the “2-week resignation period” is not necessarily accurate. The employee must provide to their employer proper notice of resignation so that the employer has time to find a suitable replacement for the employee and avoid financial loss. This may mean more than a two-week period. Courts can look at whether given the employee’s role, position, responsibilities, and time required to find a suitable replacement, was the notice of resignation reasonable or not. If not, the employer may be able to claim damages.

Finally, sometimes an employee fails to provide any sort of resignation at all and simply leaves the employment. In those cases, the employer may claim that the employee has abandoned their employment. Courts will need to see if it can be reasonably understood from the situation and looking at the words and actions of the employee that the employee has abandoned their employment where an employee has claimed that they did not resign but were wrongfully dismissed.

How can Zeilikman Law help?

An employer can expect to see some employees resign. This is a normal part of the employment world and will happen in almost every business. As such, it is important that employers handle an employee’s resignation correctly to avoid certain legal difficulties that can be quite frustrating and costly for an employer.

Employment lawyers like the ones at Zeilikman Law can assist employers by helping them follow certain steps to try to prevent disputes over the terms of the resignation, notice period or other related issues. We would suggest that once in receipt of a resignation of an employee, that an employer approach an employment lawyer for at least a consultation. By approaching an employment lawyer, the employer can try to prevent any prospective legal issues stemming from the employee’s resignation. The employment lawyers at Zeilikman Law can assist the employer by reviewing the employment agreement and letter of resignation or other important documents, the facts surrounding the resignation, etc. to try to place the employer is in the best position to avoid any legal claims of dismissal from the employee.