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Are You Sure Your Employee Resigned?

By September 5, 2018November 5th, 2019Employment Law

Employees are hired, and employees resign.  These are typical events in any employment relationship.  Of course, DMC helps dentists with hiring, interviewing, and employment contracts.  We also help dentists with the end of employment relationships.

An interesting case has just been released by the Ontario Superior Court of Justice that is prompting me to again ask any dentist who calls me: “Are You Sure Your Employee Has Resigned?”

The new case that was just released is called English v. Manulife Financial Corporation, 2018 ONSC 5135.  It centres around a 10-year employee who resigned, but then wanted to take back her resignation.

The Facts

The plaintiff in this case was a 66-year-old Senior Customer Relationship Manager (Group Savings and Retirement) and was earning $128,000 including bonus and benefits. To note, at some point in 2015, Manulife decided that it would convert its information to a new computer system starting in January 2016.

On September 22, 2016, the employee delivered her resignation letter to her supervisor because she did not want to be involved in the upcoming computer transition (mentioned later on):

Dear Clive, This will serve formal notice that I will be retiring effective December 31, 2016.

I have enjoyed working at Standard Life/Manulife for the past 10 years very much, and want to thank you very much for all your support during my tenure.

I especially want to express my gratitude for all your support and understanding during my very difficult times in 2012 and again in 2015.

I will entertain a part-time position, two or three days per week, should be possible (sic), but I understand if it is not.

Again thank you so much for everything.

Sincerely, Elisabeth English

One reading this letter would assume that it is a clear indication that the employee is retiring in about 2.5 months, right? There was no evidence that the employee was forced to retire or resign from employment.

Well, at a follow up meeting to discuss this letter, the employee’s supervisor asked her whether she was “sure” that she wanted to retire.  Apparently the supervisor said that that she could rescind or reconsider her resignation. So the employee felt she could rescind her notice of retirement at any time, right up until the end of December.

The employer started to reallocate the retiring employee’s work.  All was well.

Importantly, in October 2016, Manulife said it would delay that computer conversion to some time in the future.

So in October 2016, after hearing the computer system roll-out would be delayed (and only one month after the employee resigned), the employee decided she would rescind her retirement notice and continue working. But she never confirmed this in writing.

After about a month (and probably while the employer received legal advice), the employer confirmed that it had accepted the employee’s resignation and would not continue to employ her after December 31.

The employee then sued her former employer for 16 months of pay.

The Outcome

The main question the judge had to answer was essentially whether the employee could rescind a notice of resignation/retirement before the final day of work. The final answer in this case was: No, the employee could not and did not take back her resignation.

Reviewing all of the evidence, the judge first confirmed that the employee made a clear and unequivocal notice of retirement/resignation. This was based on the evidence that the employee wrote up her resignation letter herself, wasn’t forced to resign, and went to the resignation meeting on her own volition. So, the evidence proved that the employee wanted to resign all along.

Then, the judge went on to review the evidence of how the employee tried to rescind her resignation. The most important parts of the analysis included these findings:

  • The employer accepted the written notice of retirement;
  • The conversion to the new computer system was put on hold, at which point the employee wanted to stay;
  • The employee never put her cancellation of notice of retirement in writing;
  • The employer never accepted (in writing or otherwise) the verbal notice of cancellation of retirement.

Essentially, it came down to first year contract law: offer and acceptance.  The employee made an offer to continue working, but the employer didn’t accept it.  In other words, since the employer never accepted the employee rescinding her retirement notice, then the original retirement/resignation notice was the only valid instrument between the employer and employee. The judge specifically wrote at paragraph 36:

When the Plaintiff heard that the conversion was no longer going to take place she may have wanted to resile from her notice of retirement. It would have been open to the Defendant to have allowed the Plaintiff to resile from her notice of retirement had the Defendant chosen to do so. The Defendant had accepted the Plaintiff’s notice of retirement and was under no obligation to allow the Plaintiff to rescind or resile from her notice. The Defendant could, perhaps, have handled the situation better, by advising the Plaintiff in mid or late October that her notice of retirement was binding on her. There is, however, nothing in the evidence that would suggest that the Defendant lead the Plaintiff along to believe that her intention to resile had, in fact, been accepted by the Defendant. At most, the Defendant was silent about her request. But silence does not equate to acceptance.

Lessons Learned

Confirming your employees’ intentions is always best done in writing. In this case, the employee did that for the all-important resignation letter.  But when it came to revoking the letter, it wasn’t given the same attention.  But let’s say the employee had done her duty and provided a revocation of the resignation – what then? Based on this decision, it would have still been up to the employer to either accept or reject the employee’s wishes.  It would be similar to rehiring the employee on the same terms as before, but there is no guarantee for the employee.

If your employee resigns, make sure to get it in writing, confirm that you accept their resignation (if that’s what you want), and make sure everything works out smoothly.  We would be happy to help you and your dental practice.

DMC