When is a Resignation not a Resignation?

From time to time, emotions can get high in the workplace. Sometimes, this can result in an employee quitting in the middle of a fit or heated exchange.  But what happens when the employee attempt to resile from his or her resignation? A few recent cases have clarified the law on what constitutes a resignation at law.

Case Study – Johal v Simmons da Silva LLP

In Johal v Simmons da Silva LLP, 2016 ONSC 7835, a 62-year-old Plaintiff was employed as a senior family law clerk with the Defendant for 27 years, and she was the primary law clerk to Clark, a lawyer at the firm for the last seven years of her employment.

In June, 2015, Clark informed Johal that another law clerk would be responsible for Johal’s work.  The following day, Johal removed her personal belongings from the office and returned her security pass to Clark.  The Defendant claimed that Clark asked if Johal was resigning to which she replied that she had “hit the end of the road”. The Defendant did not attempt to contact Johal further and she did not return to work or contact anyone at the Defendant until six days after the initial discussion and five days after she removed her belongings. The Defendant did not allow her to return to work and took the position that she resigned.

Johal sued for wrongful dismissal, and brought a motion for summary trial on the issue of liability.  The Court found that Johal’s actions did not constitute a proper resignation and found that she was wrongfully dismissed when she was not permitted to return to work.

The Court stated that the law is clear that a valid and enforceable resignation must be clear and unequivocal. To be clear and unequivocal, the resignation or conduct must objectively reflect an intention to resign. The courts will look at the surrounding circumstances to determine if a reasonable person, viewing the matter objectively, would have understood the employee to have resigned. Courts have in the past found that a resignation during “a spontaneous outburst in highly charged emotional circumstances can undermine its essential voluntariness”.

Emotions can get high at the workplace from time to time.

Case Study – Bishop v. Rexel Canada Electrical Inc

Similarly, the British Columbia Supreme Court release a decision in December 2016 with a similar result. In Bishop v. Rexel Canada Electrical Inc., 2016 BCSC 2351, a 61-year-old Plaintiff was employed for over 27 years with a buyer for a large electrical products retailer and distributor.

In December 2015, the Defendant employer asked the Plaintiff to take on an additional task of to assist another buyer who was overwhelmed. The Plaintiff felt significantly overburdened by the addition of this task.  On January 4, 2016, the Defendant employer sent the Plaintiff an email requesting that he continue to perform the task. The Plaintiff was upset at being asked to continue this task and he felt overloaded with work. That same day, the Plaintiff responded by email advising “I will not be returning – please advise”.

Shortly after sending the email, the Plaintiff’s supervisor met with him to discuss the email.  During the meeting, the Plaintiff’s supervisor asked another employee to escort the Plaintiff out of the office. A few days later, the Plaintiff picked up an envelope from reception that stated “your resignation of employment as indicated in your letter of January 4, 2016 is accepted”.  The Plaintiff claimed to not send a letter of resignation at anytime.  The Plaintiff proceeded to sue for wrongful dismissal.

At trial, the court concluded the Plaintiff did not resign from his employment, as there wasn’t a clear and unequivocal intention by the Plaintiff to resign. Furthermore, the court concluded that the Defendant employer terminated the Plaintiff’s employment on January 4, 2016, by escorting him out of the building, and requesting that the Plaintiff return his keys so that he could no longer access the building.  Ultimately, the court awarded the Plaintiff 20 months’ damages.


These cases are a reminder that employers have the burden of proving that an employee voluntarily and equivocally resigned from his or her employment.

If an employee quits after a heated exchange or an emotional outburst (whether it was done orally or in writing), and then later tries to revoke it, it’s likely that the employee didn’t legally resign. If the employee is then not permitted to return to work, then it result in a termination.  Instead, the law requires an employer to take positive steps to confirm the employee’s intention to resign at the earliest opportunity.

Employers or employees who find themselves in situations where a resignation has occurred under tenuous circumstances are encouraged to consult with experienced employment law counsel.