Resigning in haste spells trouble
All employees f ace workplace frustrations, but most know better than to storm out of the workplace in the heat of the moment. A recent Ontario ruling protected one employee from her illinformed decision to do just that.
Rajinder Johal was a 57- year- old senior law clerk who had worked at Simmons Da Silva LLC for 27 years. In June 2015, she was told that she would have to work alongside a colleague returning from maternity leave. Johal was upset with this arrangement — so upset that, the next morning, she cleaned out her office and placed her security pass on her boss’ desk. Her boss claimed that she told him she had been placed in an “intolerable position” and that she “was at the end of her road.” He also claimed she returned to the office later that day just to return her security fob.
No one heard from her for five days after that, but then she tried to withdraw her resignation.
But resigning was a mistake, because an employee in Johal’s position could be entitled to upward of two years’ pay on termination without cause. Employees who resign are entitled to nothing. But Johal’s termination had been a serious possibility — the firm was already top heavy with highpaid law clerks. The firm had lost one of its four lawyers and another one had given notice. The firm could not keep all its law clerks busy.
It was for this reason, the court found, that Johal’s em- ployer jumped on the “opportunity” to accept this resignation.
Johal talked to a lawyer five days later, and realized her error. Many would think she was trying to shut the barn door after the horse had bolted. After all, wasn’t her resignation voluntary? Not so, according to the court. Importantly, when Johal resigned, her employer opportunistically took the “hear nothing, see nothing, speak nothing” approach. No manager attempted to contact her.
After perfunctorily waiti ng f or some time i n an attempt to appear reasonable, the law firm sent Johal a letter purporting to “accept” her resignation. The court considered this a form of legal hardball that should be discouraged, as the circumstances of Johal’s departure “cried out for further inquiry” by the employer.
What is the take away for employers? It has long been perilous for employers to jump on an employee’s hasty resignation before tempers have cooled. Employees should know that if they wish to resign, they must indicate that intention with a clear head and without any pressure. Storming out of the workplace upset or angry is not normally a resignation. If possible, the employer should obtain written evidence of that employee’s wish to resign. And it should always consider the reputational consequences of its actions — no employer wants a losing case on the public record.
For employees, the advice remains the same: do not storm out, do not resign in expectation of being fired, do not place yourself into a position where you need to withdraw your resignation. No employee wants to expend their time, money and energy on a drawn- out wrongful dismissal suit. Johal, for instance, ended up without any award a year and a half after the fact — the judge ordered a full trial on the issue of her damages.