Hasty resignations can spell trouble for both sides
By Howard Levitt
All employees face workplace frustrations, but most know better than to storm out of the workplace in the heat of the moment. A recent Ontario ruling protected one employee from her ill-informed decision to do just that.
Rajinder Johal was a 57-year-old senior law clerk who had worked at Simmons Da Silva for 27 years. In June 2015, she was told that she would have to work alongside a colleague returning from maternity leave. Johal was upset with this arrangement — so upset that, the next morning, she cleaned out her office and placed her security pass on her boss’ desk. Her boss claimed that she told him she had been placed in an “intolerable position” and that she “was at the end of her road.” He also claimed that she returned to the office later that day just to return her building security fob.
No one heard from her for five days, but then she tried to withdraw her resignation.
Why was resigning a mistake? An employee in Johal’s position could be entitled to upward of two years’ pay on termination without cause. Employees who resign, on the other hand, are entitled to nothing. Before Johal resigned, her termination was a serious possibility — the firm was already top heavy with high-paid law clerks even before Johal’s colleague was to return from maternity leave. The firm had lost one of its four lawyers and another one had given notice of departure. The firm could not keep all its law clerks busy. It was for this reason, the Court found, that Johal’s employer jumped with alacrity on the “opportunity” to accept this resignation.
Johal talked to a lawyer five days later, and realized her error. Many would think that she was trying to shut the barn door after the horse had bolted. After all, her resignation was voluntary. Not so, according to the Court. Importantly, when Johal resigned, her employer opportunistically took the “hear nothing, see nothing, speak nothing” approach. No manager attempted to contact her. After perfunctorily waiting for some time in an attempt to appear reasonable, the law firm sent Johal a letter purporting to “accept” her resignation. The Court considered this a form of legal hardball that should be discouraged, as the circumstances of Johal’s departure “cried out for further inquiry” by the employer.
What is the takeaway for employers? It has long been perilous for employers to jump on an employee’s hasty resignation before tempers have cooled. If an employee’s resignation sounds too good to be true, act like it is or risk failing the “smell test” before the court. Employees who wish to resign must indicate that intention with a clear head and without any pressure. Storming out of the workplace upset or angry is not normally a resignation. If possible, obtain written evidence of that employee’s wish to resign. Finally, always consider the reputational consequences of your actions – no employer wants a losing case on the public record.
For employees, the advice remains the same: do not storm out, do not resign in anticipation of being fired, do not place yourself into a position where you need to withdraw your resignation. No employee wants to expend their time, money and energy on a drawn-out wrongful dismissal suit. Johal, for instance, still ended up without any award a year and a half after the fact — the judge ordered a full trial on the issue of her damages.