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When is a resignation a resignation?

When a resignation is a resignation
By early 2005 Perry had been employed by an industrial maintenance company for 15 years. He was a branch manager earning a total package worth around $140,000.00 a year. Perry had a safety manager working in his branch who did not report directly to him.
Apparently, the safety manager complained to head office in Texas that Perry had yelled at her and had been rude to her when he found out she did something he did not like. The boss from head office came up and met with Perry and the safety manager. Perry was confronted with the safety manager’s allegations about his rudeness and then two other employees were invited to join the meeting by the boss so they could also criticize Perry’s treatment of employees.
The employer claimed that during this meeting Perry verbally resigned his employment. Perry showed up at work the next day and the boss said Perry asked to be able to retract his resignation. Perry kept working and two days later the boss sent him a long memo which said that he was not allowing him to withdraw his resignation, that the boss was in fact accepting the resignation and indicating that they needed to figure out a transition plan for his departure.  Perry ended up reporting to work for another week and getting paid for another two weeks after that. Perry sued for wrongful dismissal claiming that he should have gotten pay in lieu of notice. The employer said that Perry quit and was entitled to nothing.
At trial, Perry indicated that he did not resign at all but that he said that if the allegations made by people in the meeting were not withdrawn he would feel forced to resign. Perry’s boss testified that he did not remember Perry actually saying the words, “I resign”. One of the other complaining employees who was at the meeting indicated that Perry had said that he felt the best course of action would be for him to resign. He then said that Perry indicated that he had made up his mind to resign. According to him Perry said that he was going to resign. Again, this employee did not remember Perry actually saying, “I resign”. In fact, nobody at the meeting gave evidence that they actually heard Perry say, “I resign” or “I quit”.
The court found that in order to decide whether words or actions equate to an actual resignation, everything has to be looked at in context. The test is whether an objective person, having been advised of all the circumstances and what was said, would understand the employee to have unequivocally resigned.
The law is clear that where an emotionally upset and angry employee actually says the words, “I quit”, which Perry did not, the issue is to whether he resigned is still not clear cut. If it was in the heat of the moment and is quickly retracted, the courts will rarely let an employer rely on it.
In this case, Perry was being told by his boss and fellow employees that he was a mean bully. Even his boss agreed that Perry was upset during the meeting on hearing these allegations.
Employees who have unequivocally quit don’t show up for work the next day and employers who think an employee has quit usually don’t let them work for a week and a half after the date they “quit”.
The judge noted all this and the fact that Perry only stopped working when his employer told him not to come back.
There have been some judges who have actually said that unless the employer has already relied on the resignation to its detriment, the employee is still free to retract it. That law has to taken with a grain of salt. If I quit my job, clean out my office and stop showing up for work, I can’t retract my resignation two weeks later just because my boss has not yet hired a replacement or put an ad in the paper. On the other hand, if I clearly quit my job and as a result, before I retract it the next morning somebody else had been promoted or transferred to take over my responsibilities and restructuring had already taken place, I will be out of luck.
The judge in Perry’s case also noted that the boss did not in fact accept Perry’s resignation until three days later when he sent Perry a memo telling him he could not retract it and the boss was accepting it. The fact is that if Perry had in fact resigned, he had already retracted it before it was accepted. 
Ultimately, the judge decided that the Perry had been terminated and that he was entitled to 18 months pay in lieu of notice of that termination. The lesson of the day is that “almost” only counts in horseshoes and hand grenades. There is no such thing as almost quitting. Even where a resignation is clear and unequivocal, if it uttered in the heat of the moment it can be retracted if the employee acts quickly.
My advice to employers is to immediately communicate in writing the acceptance of a resignation and hope that it is not retracted quickly.
My advice to employees is never quit, wait to get fired, you get more.
As published in the Hamilton Spectator, October 25, 2008
Ed Canning
Ed Canning
P: 905.572.5809