In English v Manulife Financial Corp ( 2018 ONSC 5135 ) Edwards J. had a situation where an employee gave her employer 4 months notice of her resignation because she did not want to be involved in an upcoming computer conversion that was planned. The Employer accepted her resignation and started to make plans to redistribute her work. About a month later the employer changed their mind and cancelled the computer conversion. Since this was the basis for the employees’ decision to resign, upon hearing this news, she told her employer that she was withdrawing her resignation notice. The employer waited about a month later to say that they were not accepting her withdrawal and said that she would be expected to leave on the date she originally set.
The Court held that where a resignation is clear and unequivocal , as soon as it is accepted by the employer, then it cannot be withdrawn. Only where the employer has not accepted the resignation and has not detrimentally changed their position ( for example by hiring a replacement ) can the employee withdraw the resignation. In simple contract terms, the resignation is offered and then accepted and thus a contract is formed.
Quere: Where the entire basis of the plaintiff’s resignation was the upcoming computer conversion, which was then cancelled by the employer, can it truly be said that her resignation was unequivocal ?
Would it not be fairer to say that her resignation was conditional on the computer conversion going ahead, and when that precondition changed , she was free to withdraw her resignation ?
What if the situation was reversed. The Employer announces a layoff four months in the future and then a month later changes their mind and cancels the layoff . If an employee tried to say that the layoff could not be cancelled and demanded their full common law notice, surely the employer would argue that if the employee refused to work after the original layoff date that action would constitute either a quit or at least a complete failure to mitigate their damages.
I guess what is good for the goose is not always good for the gander.
UPDATE:
I am pleased to announce that the Ontario Court of Appeal has now overturned this decision ( 2019 ONCA 612 ) . This what they said:
[20] The motion judge concluded that the appellant’s September 22, 2016 letter constituted a “clear and unequivocal” resignation.
[21] As I will explain, this was an error. Her resignation notice was equivocal given the circumstances in which she presented it to Manulife, and she was entitled to withdraw it.
[22] When the appellant gave Mr. Ramnath her retirement letter, she told him that she was not entirely sure she wanted to retire. The impetus for her letter was the computer conversion. She was told by Mr. Ramnath that she could change her mind. Mr. Ramnath admitted this under oath. Within three weeks the computer conversion was cancelled. The day after the cancellation was announced, the appellant told Mr. Ramnath that she had changed her mind. He did not indicate that there was a problem with this.
[23] These facts do not support a clear and unequivocal resignation. On the contrary, they demonstrate that the appellant was equivocal when giving her resignation notice, and that her equivocation was condoned by Manulife through the actions of Mr. Ramnath.
[24] When Manulife cancelled the computer conversion within three weeks of her September 22, 2016 conversation with Mr. Ramnath, the basis for the appellant’s resignation disappeared. The appellant moved promptly to tell him that, as discussed, she was not going to retire. Mr. Ramnath acknowledged her decision and did not tell her it was a problem.
[25] Manulife is bound by Mr. Ramnath’s promise to the appellant that she could change her mind. She did so within three weeks and her change of mind was not challenged.
[26] Since the appellant did not in fact resign, her termination on December 12, 2016 was a wrongful dismissal.