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EMPLOYMENT LAW
Apr 10, 2012

Quitting, sometimes, really is quitting

Employers may have trouble making sense of recent reinstatements of employees who quit, but a resignation can't always be rescinded
    

By Jeffrey R. Smith

It may seem from recent cases that, for employers, one can never be sure whether an employee has actually quit.

I’ve previously discussed circumstances where an employee has resigned, only to come back later saying it wasn’t a clear and independent decision.

In one case, several months had passed, but the employee was reinstated because the decision was found to be affected by the employee’s depression. In other cases, the employer had some blame because it didn’t follow up to ensure the employee’s statement to quit was clear and unequivocal.

However, there is some hope for employers that sometimes when an employee says he quits, he will be held to that decision. An employee for utilities company Ontario Power Generation (OPG) went on medical leave in 2010 to receive treatment for depression and anxiety. The employee and his psychiatrist decided it would be a good idea for the employee to go to a yoga retreat in India to help with his recovery.

However, the benefits provider denied permission and wanted him to undergo an independent medical assessment. It felt the yoga retreat provided nothing that couldn’t be found in Ontario and said it would stop his disability benefits if the employee went ahead.

Frustrated, the employee decided to go to India anyway and emailed his supervisor, OPG’s vice-president and a union representative, saying he was resigning. Over the next few days, he emailed others and arranged to have his possessions and an employment letter sent to his Ontario address. He also gave his car away.

A couple of weeks later, the employee contacted OPG and said his resignation was spurred by his mental illness and it was impulsive. However, an arbitrator looked at the fact he had sent multiple emails over several days and communicated arrangements that showed he had thought things out clearly, and found the decision to quit wasn’t influenced by the employee’s depression or anything else. The employee may have regretted making the decision out of frustration for not being allowed to go to the retreat in India, but the employee knew what he was doing, said the arbitrator.

It may be of some relief to employers that sometimes a resignation really is a resignation.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com. For more information, visit www.employmentlawtoday.com.

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