Did she just quit?

Usually, an employee's resignation is clear. It can be as simple as "I’m staying home to take care of my family," or "my spouse has been transferred to Calgary," or simply "this job isn't working for me." In situations such as these, intentions are evident and the resignation will be accepted.

Photo: Contributed

However, sometimes a resignation is not nearly so clear. Take, for example, the employee who in the heat of a debate cries "I can't work under these conditions!" before stamping out of the office and driving home. Or the employee who is called into his manager's office and is informed that he is going to be fired, but that if he wishes to save face, the company will accept his resignation. Or the employee who has been cleared for work by medical providers following a disability leave, but refuses to return. In circumstances such as these, it is best to review the rules on resignations.

A resignation must first be “clear and unequivocal” and requires both the employee's intention to resign and the employee's actions to support a finding of resignation. Stating that "I can't work under these conditions" in a burst of emotion may be criticized as unprofessional, but it is certainly not a clear and unequivocal resignation. The surrounding circumstances would have to be considered in determining whether a reasonable person, viewing the matter objectively, would have understood the employee to have resigned.

Second, a resignation cannot be obtained through pressure. Many employees have the belief that the optics of a resignation are better than those of a termination, and if given the option, would rather resign. Whether this is true or not, from a legal perspective, it makes little difference. If an employer demands a resignation, or presents the choice of either resigning or being fired, the resignation would not be valid as it is not voluntary.

Similar to resignation is the principle of job abandonment. Every employee has the responsibility to attend at work and perform the duties that are expected of them. This duty is only waived if the employee is excused from work by the employer, is entitled to leave under law (such as parental leave), or is unable to report to work (for example, due to illness).

Abandonment occurs when the employee breaks this duty without an appropriate explanation. In the case of an employee that has been cleared to return to work but refuses to do so, an employer may determine that the employee has no intention of being bound by his employment and has abandoned his job.

The test for abandonment is similar to the test for resignation: the facts, when viewed objectively by a reasonable person, must unequivocally demonstrate that the employee no longer has the intention of being bound by the employment relationship. In cases of job abandonment, the prudent employer will make considerable efforts to be in touch with the absent employee and understand their intentions.

In most cases resignations are clear, unequivocal and voluntary. The employee clearly expresses that she is moving on and the employer accepts. Ambiguities in a resignation are often associated with a breakdown in communication or conflict between the employee and the employer. In these circumstances employers should be extra diligent in trying to decipher the employee's intentions.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.