Prior to January 1st, 2018, employers with 50 or more employees were obligated to provide employees with ten unpaid “Personal Emergency” days. Bill 148 eliminated the 50 employee threshold, and introduced a new requirement that the first two days of the ten-day entitlement be paid.
Hi everyone, it’s Brittany Taylor back with another Rudner Law vlog update.
Today I want to talk to you about employee resignations. Now you might be thinking this is going to be a very short video – what really is there to talk about? An employee gives notice of their resignation, they work to the end of that notice period, and that’s it. Well, like many things in employment law, sometimes it’s just not that simple.
The courts in Canada have repeatedly emphasized that in order for an employee’s resignation to be effective, it has to be clear, unambiguous, and voluntary. Where all three of these elements are not present, it may be possible for an employee to argue that their resignation was actually ineffective. Let’s take an obvious example of an employee who resigns in the heat of the moment, perhaps dramatically storming out of the meeting room or even the building, when they do so. But then the following day, once cooler heads have prevailed, the employee calls their employer, apologizes, and asks to come back to work. In cases like that, courts have upheld an employee’s right to revoke their resignation, when they’re clearly in an emotionally compromised state, they’re not able to provide voluntary resignation at that point. So that’s a pretty obvious example of when a resignation may not be effective.
Last year the court of appeal actually looked at a situation that’s a bit more complicated than that. They were posed with the question of what happens if an employee resigns for a very specific reason and then that reason later disappears. Is the employee entitled to rescind their resignation at that point? So the case where the Court of Appeal examined this question is called English v. Manulife Financial Corporation.
So in this case, the employee gave notice of her resignation to take effect several weeks into the future, and she did so only after learning that the company would be implementing a new computer system. Now, this employee was in her 60s, she perceived herself as being kind of at the end of her career, and she just didn’t feel confident that she would be able to learn and adapt to a new computer system at this stage of her life and career. So she provided notice to her supervisor who candidly asked her if she was sure about the decision that she was making, and she was quite open with him she said no, actually I’m not sure, I’m not 100% confident that this is the decision that I want to make, and he was sympathetic to that, he told her look if you want to change your mind down the road, just let me know.
Less than three weeks later, it was actually the company that changed their mind, when they announced that they were suspending the computer system change indefinitely. The employee immediately took action, she went to speak with her supervisor, advised him that she wanted to rescind her resignation. He had no issue with this, he passed on this information to HR, and asked them if there was anything else that he needed to do in order to ensure that everything moved forward smoothly. A month later, the supervisor comes back to the employee, to communicate the company’s decision that it would not accept the revokation of her resignation, and ultimately the company told her to stop attending at work.
So at trial, the court found in favour of the employer. They felt that the employee’s resignation ticked all of the boxes, it was voluntary, nobody had forced her to turn in her resignation, they felt it was clear and they thought it was unambiguous. The Court of Appeal disagreed entirely, finding that her resignation was clearly equivocal given the fact that she had advised her supervisor at the time that she gave notice, that she wasn’t sure about her decision. The supervisor had specifically acknowledged the fact that she wasn’t sure about her decision by telling her that she could reconsider if she wanted to. The court found that the employer was bound by the supervisor’s representation to the employee, that she could change her mind if she wanted to. Since the employee had not resigned in this case, by telling her not to come back to work, the employer had terminated her employment, and in this case she was awarded 12-months of pay in lieu of notice as a result.
The interesting thing to note about this decision was that the court’s findings hinged entirely on the supervisor’s representation to the employee. If this representation had not been made, this case may have been decided very differently, even though the entire reason for the employee’s resignation was eliminated when the company changed its mind about the computer system upgrade.
Our advise is for employers to always avoid making any kind of promise to an employee when they resign, about their ability to change their mind if circumstances change in the future. On the contrary, it’s usually in your best interest to remind the employee that this decision is final.
And for employees it’s important to understand that, it’s important the understand that without assurances from your employer to the contrary, you may not be able to go back and change your mind down the road. So if you are submitting your notice of resignation, keep in mind that this could be a final decision.
That’s it for me today, I hope this was helpful.