When its not clear an Employee has Resigned

Fired lawyer, call a lawyer after fired, toronto employment lawyers best reated
When is a Resignation a Resignation?

A resignation is only enforceable if an employer, who should have doubted an employee’s intention to truly quit her job, examined whether such a consequential decision on the employee’s behalf was truly intended. A good example of this line of reasoning comes from the Ontario Superior Court’s recent decision in Johal v Simmons da Silva LLP (“Johal”).

Background

In Johal, the employee Plaintiff worked for the Defendant law firm, Simmons da Silva (“the firm”), for 27 years as a law clerk. The Plaintiff was the primary law clerk of the firm’s lawyer, Mr. Clarke.

Beginning in 2014, the firm lost two of its four lawyers. About a year later, in June 2015, another law clerk, Ms. Forsythe, announced that she would be returning to the firm from maternity leave, making the firm top-heavy at the law clerk position. Accordingly, on June 3rd, 2015, Mr. Clarke called the Plaintiff to a meeting to inform her that she would be continuing in the same role, but that Ms. Forsythe would now assist him as well. This caused the Plaintiff some unhappiness, as she believed that Ms. Forsythe (whom she did not get along with) would be responsible for assigning work to her and that she would now be reporting into Ms. Forsythe, not Mr. Clarke.

The next day, June 4th, 2015, the Plaintiff returned to work. Upset, she removed all her personal belongings from the office, and then entered Mr. Clarke’s office, putting her security pass on his desk, and quickly left the office. The Plaintiff never returned. Following this, none of the firm’s lawyers, including Mr. Clarke, contacted the Plaintiff until June 8 at 5:00 pm, when the firm sent her a letter “accepting” her supposed resignation.

Subsequently, the Plaintiff sued for wrongful dismissal, arguing that she did not resign.

Did the Plaintiff Resign?

No. The Plaintiff did not resign. The court found that a valid and enforceable resignation must be clear and unequivocal when viewed contextually. In this case, however, the Defendant firm failed completely to examine the Plaintiff’s resignation.

The court emphasized that the “hear nothing, see nothing, speak nothing” response from the firm was suspect. The court noted that the firm’s failure to investigate the resignation was to the firm’s financial advantage if the plaintiff resigned, since the firm was top-heavy with law clerks, considering that half the firm’s lawyers had left in the last year. Therefore, if the Plaintiff resigned, the firm would not have to make any payment in lieu of notice, which would have been very expensive for a 27-year employee.

Thus, the firm’s “let sleeping dogs lie” attitude was its downfall, as the court held that the firm could not have reasonably viewed the Plaintiff’s action as a voluntary resignation without, at least, some investigation. After all, the court concluded, Mr. Clarke did not make any attempt to discuss the June 3rd meeting with the Plaintiff; neither Mr. Clarke nor anyone at the management level of the firm attempted to contact the Plaintiff at any time after June 4th; the Plaintiff had never threatened to resign in her previous 27 years; the Plaintiff would not have had a job immediately available to her; she did not provide the firm with written notice or even verbally state that she was quitting/resigning; and her sudden departure was out of character

Take Away for Employers

Employers must take at least some steps to confirm whether a resigning employee truly intended to quit their job. This is especially true when it is not even clear if the employee stated orally or in writing that they were resigning. Here, I would suggest a reasonable person in the firm’s shoes would have at least called the Plaintiff and asked, “did you quit”? However, as the judge confirmed, we know why they didn’t (hint: $$$). Perhaps the court will award extra damages to punish the firm at the next hearing (the court reserved judgment on the issue of the quantum of wrongful dismissal damages).

Read the full decision: Johal v Simmons da Silva LLP, 2016 ONSC 7835.

Dutton Employment Law is a leading Canadian employment and labour law firm. Contact one of our employment and labour lawyers if you have any questions concerning this blog post, or employment and labour law in general.

Leave a Reply

Your email address will not be published. Required fields are marked *