Resignation 101
**Written by Zura Nakiwoga, Articling Student at Lee Workplace Law
Resigning from a job can be a difficult decision. In Ontario, there are laws that govern the process of resignation to ensure a fair and just transition for both the employer and the employee. This article provides an overview of the legal and practical considerations that guide this important aspect of employment.
1. Notice of Resignation:
In Ontario, the starting point is an employee has the right to resign from their job at any time, for any reason, without providing prior notice to the employer.
However, this can be ousted if an employee has an enforceable employment contract with their employer that requires them to provide a certain amount of advanced notice. In that case, the employee must comply with the requirement of the contract. Failure to do so could entitle the employer to take action for "wrongful resignation". While not common, it can occur, especially if the employee's abrupt departure causes harm to the employer's business.
2. Voluntary Resignation:
Critically, resignation must be a voluntary decision on the part of the employee. Employers are prohibited from coercing or compelling an employee to resign against their will. If there is doubt about an employee's intention to resign, their words and actions during the resignation process will be evaluated to determine their true intent.
If an employee resigns impulsively, employers should tread cautiously. Employees generally have the right to retract their resignation in the immediate aftermath of the initial decision, particularly if the resignation occurred in the midst of strong emotions. In these situation, employers would do well to confirm, in writing, that the employee intended to resign.
2. Form of Resignation:
Unless otherwise required by the terms of the employee's contract, there is no general obligation on employees to provide written notice of resignation. However, it is generally considered best practice to submit a written resignation letter.
A written resignation provides a clear record of the employee's intention to resign, the date of resignation, and can serve as evidence if there are any disputes regarding the resignation later on.
When resigning, it is crucial to inform the employer about the notice period being provided and specify the final working day.
If the employee is resigning due to unfair treatment and is contemplating legal action for constructive dismissal, the employee should seek legal advice before providing the notice of resignation as the content of the resignation letter may serve as crucial evidence in the future.
3. Notice Period:
Even if not contractually required to provide advanced notice of resignation in Ontario, it is considered a professional courtesy to nonetheless provide reasonable advanced notice, to allow the employer time to transition the work and/or find a suitable replacement.
Failing to provide sufficient advanced notice can lead to adverse outcomes for both parties involved. For the employer, finding a replacement or reallocating the departing employee's tasks becomes a hurried and disruptive process, potentially impacting the smooth flow of the company's operations. Furthermore, this oversight can damage the employee's relationship with the employer, tarnishing their professional image and diminishing future job opportunities.
4. Constructive Dismissal:
If an employer substantially changes the fundamental terms of employment or creates a poisoned work environment, an employee might have grounds to claim constructive dismissal. In such cases, their resignation is not considered voluntary, and the employee may be entitled to severance as well as damages. For more information on constructive dismissal, please check out our previous blog post: What is a Constructive Dismissal?
5. Resignation and Unemployment Benefits:
Employees who voluntarily resign from their jobs are generally not eligible for unemployment benefits. However, specific circumstances, such as workplace harassment or unsafe working conditions, might justify resignation and still allow the individual to claim unemployment benefits. It is crucial to consult with legal experts to understand the eligibility criteria in such cases.
6. Can an employee come back to their job after resigning?
It depends on several factors, including the policies of the employer, the reasons for resignation, and the relationship between the parties involved.
If the employee resigned voluntarily and left on good terms, they might be considered for reemployment. If the employee wishes to return to the job, it is advisable to communicate with the previous employer. In many cases, even former employees are required to go through the standard application and interview process. If rehired, the terms and conditions of employment, including salary, benefits, and job responsibilities, might be outlined in a new contract.
Conclusion:
When dealing with resignations, clarity, communication, and legal adherence are paramount. Employees have the right to resign voluntarily, but it must be unambiguous, free of coercion and done in compliance with any contractual obligations. While employers have a right to accept freely given resignations, caution may be required when an employee resigns in the heat of the moment or claims the resignation was not voluntary.
Given the complexities surrounding resignation and employment laws, it is advisable for both employers and employees to seek professional legal advice. Employment lawyers can provide tailored guidance based on individual circumstances, ensuring that the resignation process is conducted in accordance with Ontario's legal framework.
