Most often when an employee quits it is voluntary and provides an end to the employment. However in some cases a resignation can be categorized as an involuntary resignation and wrongful dismissal.

Impact of a Resignation

When a resignation is voluntary it eliminates the typical bundle of rights a wrongfully dismissed employee would have. As such a voluntary resignation is a complete defence for the employer to any wrongful dismissal claim by the employee. Employers therefore have a vested interest in painting an employee's departure as a voluntary resignation, to protect themselves from the consequences of a termination.

What Is an Involuntary Resignation?

There are situations where the resignation is anything but voluntary. We have previously discussed on this blog common patterns of involuntary resignation. Most often the employee suffers some trauma or adversity in the workplace. Then in the heat of the moment, while in an emotional state, they say “I quit”. Later, when the employee has a chance to calm down, they may try to recant the words. Sometimes the employer will accept this and the employment will continue. But often the employer seizes upon the words and ignores the employee’s recanting, ending the employment.

Another common situation where involuntary resignation occurs is when the employer threatens termination for cause, but offers the employee the chance to resign to avoid the stigma of dismissal. The coerced employee then “resigns”. An employee in these circumstances may attempt to claim, as part of a wrongful dismissal lawsuit, that a resignation was involuntary and therefore should not end the employment. Rather the employee will argue they were in fact terminated and thus entitled to the damages they would be entitled to for a termination.

When the employer and employee disagree on whether there was a voluntary resignation, the court will look at the overall circumstances of the parties at the point of termination. The court's analysis may also be informed by events that occurred after termination. An example of relevant post-termination circumstances would be where the employer fills out a Record of Employment that indicates a dismissal. This would be inconsistent with their claim there was a voluntary resignation

Involuntary Resignation Cases

A classic legal decision on  resignation is found in Assouline v. Ogivar, a B.C. case from 1991. In that case, the employee complained he had not received commission from a large sale, and a heated discussion ensued between the employee and employer. In a moment of frustration, the employee exclaimed that he could not continue to work for a company which did not honour the employment contract. The employer took this statement as a resignation, locked the employee out of his office and advised him his resignation had been accepted. The court examined the surrounding circumstances, including the verbal dispute that erupted and the fact that a number of other employees had, and were discussing, the same problem, and concluded that there was no voluntary resignation. Rather it was a statement of potential future options.

The British Columbia Court of Appeal in Beggs v. Westport Foods Ltd. set out the test the court uses in resignation cases, which is an objective one. They look at:

1. Whether the employee intended to resign; and
2. Whether the employee's words and acts, objectively viewed, support a finding they resigned.

Another example of an involuntary dismissal comes from the case of Chan v. Dencan Restaurants Inc. The employee in that case involuntarily resigned twice. First, at the age of 61, he was told he was being terminated but had the option to resign instead. Saving face was important in the employee's culture, and he was worried about finding another job if fired, so he resigned. At the end of employment he expressed that he didn't want to resign and higher management intervened to bring him back. The following year, his direct superior again threatened he could either resign or be fired. Again the employee resigned to save face and make future job searches easier. The employee said in the resignation letter he was resigning to take care of his and his wife's health, at his family physician's recommendation. At trial the physician testified no such advise was given. The judge found it was understandable the employee would create an explanation to help save face. Involuntary resignation was also supported by the previous attempt by the employer to pressure the employee to resign. The judge found the resignation to be involuntary, and that a wrongful dismissal occurred.

Overall the takeaway from the cases is that for an employer to escape liability for a dismissal, a resignation must be a voluntary in all the surrounding circumstances.

Conclusion

If you are under pressure to resign, or already did, give us a call. There is a good chance you were wrongfully terminated and we will be happy to help.

About the Author

Dan Howitt assists both employees and employers with managing all phases of the employment relationship.  His focus is helping clients achieve a fair and cost effective solution to their employment related problems. His emphasis is on negotiation and settlement.  If you would like to schedule a meeting with Dan or another lawyer, call us at 604-988-1000. We will be happy to help.