Employers must be wary when an employee suddenly resigns in the heat of the moment. In certain circumstances, an employer may be obliged to follow up with the employee or allow a cooling-off period to ensure that the resignation is truly voluntary and intentional. An employer who quickly pounces on an employee's heated resignation - and unreasonably refuses to allow the employee to return to work - may be surprised to find that they are the defendant in a wrongful dismissal action.
Under ordinary circumstances, when an employee voluntarily says "I quit", the employment relationship naturally comes to an end. And because it is the employee who initiates the termination (as opposed to the employer dismissing the employee), the employer will usually be under no further obligation to provide notice or severance pay to the employee. There cannot be a wrongful dismissal if there is no dismissal at all.
Why is a 'heat of the moment' resignation treated differently?
A 'heat of the moment' resignation is treated differently because the employee's outburst may not reflect the employee's true intentions. In the course of heated conversations, people may make statements that they did not genuinely mean, did not intend to say, or soon after regretted saying. Sometimes it may be necessary for an employer to allow cooler heads to prevail.
Courts recognize that an unintended resignation has significant consequences for an employee. An employee will usually be without employment income for a time, and without any severance pay to help bridge the gap until they can find new employment (employees who voluntarily resign are also typically denied Employment Insurance benefits). Considering the ramifications of a resignation, courts demand clear and unequivocal evidence that the employee has genuinely intended to resign.
When is a 'heat of the moment' resignation not actually a resignation?
In Kerr v Valley Volkswagen, 2014 NSSC 27, the Nova Scotia Supreme Court provided a helpful description of when a 'heat of the moment' resignation may not be sufficient to end the employment relationship:
[W]here the employee, in a state of depression, frustration or emotional angst makes a hasty (usually) statement that he or she quits and shortly thereafter, realizing the rashness of his or her statement or actions, either retracts the statement in short order or engages in discussions with the employer to patch up the dispute leading to the declaration of intent to quit, the employee has not quit.
This quote from Kerr suggests that in order to retract a 'heat of the moment' resignation, the employee should be able to show that:
- The resignation itself was in the heat of the moment; and
- Shortly after the resignation, the employee attempted to retract the resignation and repair the relationship .
Although Kerr is a Nova Scotia decision, the law in BC is similar.
For example, in Bru v. AGM Enterprises Inc., 2008 BCSC 1680, the employee was under obvious stress when she stated to her boss 'I can’t take it any longer and I am quitting.' The following day, the employee called and asked whether she still had a job. When the employer stated that she had quit, the employee denied this. After a trial, the BC Supreme Court agreed that the employee had not "clearly and unequivocally" resigned. The Court summarized its reasoning as follows:
The central point is this: when it was clear that there was some kind of misunderstanding, the defendant could not just stand on the black letter utterances on November 13, and ignore all the surrounding circumstances, including Ms. Bru’s plea she had not quit (which was implicitly at least a request to review and discuss).
As a result, the employer was required to pay wrongful dismissal and other damages to the employee.
In Fitzsimmons v. School District No. 26 (North Thompson), 1996 CanLII 3448 (BC SC), the employee walked out of a heated board meeting when she felt she was being personally attacked. When asked to rejoin the meeting, she stated "if you want my resignation, you can have it." The employee went home in an upset state shortly after, and then called in sick for the following day. While she was absent, the board decided to accept her resignation. After learning that they had accepted her resignation, the employee sent a letter to the employer indicating that she had no intention of resigning, and clarifying that her offer of resignation was the result of emotional upset. The BC Supreme Court agreed with the employee, finding under the circumstances that she had not voluntarily resigned. As a result, the employee was awarded wrongful dismissal damages.
Lessons for employees and employers
It is essential for employers to exercise caution before accepting an employee's resignation that is made as part of an emotional outburst or while the employee is in obvious distress. Likewise, employers need to be cautious if the employee follows up by attempting to retract the resignation, or if there are other signs that the employee may not have intended to resign. These should be red flags for employers that legal advice is needed.
Employees who find themselves having regrettably "resigned" in the heat of the moment should consider whether there is still time to repair the employment relationship. If the relationship can be saved, quick action on the part of the employee is critical. The longer an employee waits to patch up the relationship, the more unfair it generally becomes to insist that the employer must welcome them back. Employees in these circumstances should seek advice immediately to determine whether there may still be a reasonable opportunity to patch up the relationship.
About the Author
Brendan Harvey advises and represents employees and small businesses at all stages before, during, and after the employment relationship. His primary areas of practice include wrongful dismissal, employment standards, and human rights litigation. If you would like to schedule a meeting with Brendan Harvey or any other of our lawyers, give us a call at 604-988-1000.