'If you're going to rely on a resignation, then you have to make sure that it's clear': lawyer
“If an employer wants to rely on a resignation, it has an obligation to make sure that it can clearly rely on it and that the resignation occurred.”
So says Kit McGuinness, a labour and employment lawyer at McKercher LLP in Saskatoon, after a Saskatchewan employer was found by an arbitration board to be too hasty in determining that a work resigned, leading to wrongful termination.
The worker was employed with the Lakeland Library Region at a branch in North Battleford, Sask. He was hired in August 2020 and in 2023 became a front desk worker. Staff lunch breaks were scheduled either at 12:30 p.m. or 1:30 p.m., depending on staffing requirements.
On Sept. 2, 2023 - a Saturday – the worker was scheduled for lunch at 1:30 p.m. He submitted a request to change his lunch break to noon, explaining to his manager that he had diabetes and eaten breakfast at 6 a.m., which was too long to go without eating. It was the first time he had told his employer that he had diabetes and he had never requested accommodation. He also told the manager that he wasn’t feeling well that day.
The manager wasn’t able to change the schedule, as there was only one other adult employee working on Saturdays – who was scheduled for lunch at 12:30 - along with a couple of students, and he stated that the proper procedure was to provide documentation of medical issues so modifications and arrangements could be made. The manager suggested that the worker could take his coffee break for a snack if he needed one, but the worker said a 15-minute break wouldn’t be enough to eat a meal. The manager refused again and said he would take his lunch as scheduled.
Worker mentions quitting
The manager’s position confused the worker, who had previously been able to switch meal breaks informally with colleagues. In addition, the other adult employee took the day off sick, so the manager was there to cover the lunch breaks. Frustrated, the worker handed over his library key and asked, "Should I quit?" He retrieved the key shortly after and took his scheduled break, returning to work as normal.
According to the manager, the worker raised his voice, said “something like ‘I quit,’” cursed and gave him his keys.
“The employer was treating these lunch breaks like they were written in stone, when the practice was that they had been informally traded between employees,” says McGuinness. “And things escalated from there – there was misunderstanding or miscommunication, and some real uncertainty as to what had happened exactly, and yet the employer continued to plow ahead with ‘We're not going to give you a break on when your lunch break is going to be.’”
McGuinness suggests that it’s good practice to have some flexibility in considering requests like this on short notice, as it could be better for the employer’s interests to avoid risking an escalation.
“A medical issue was identified as the basis for the request for switching a lunch break, and this whole thing could have been avoided if the employer just would have agreed in this one circumstance,” he says. “But if this was going to be an issue going forward, it might need some medical documentation so it could adjust its scheduling.”
Worker asks about resignation
The manager contacted the director of Lakeland, who arrived about 45 minutes later and met with the manager and the worker. The director asked the worker if he had resigned and the worker didn’t respond. He asked if they could expect two weeks’ notice, but the worker said no, he wasn’t quitting. He also asked the worker if he was able to work his next shift a few days later and the worker replied that he could. Since the worker was already not feeling well, they let him go home for the day, with the manager covering the rest of his shift.
The director informed Lakeland’s HR consultant about what had occurred and the consultant recommended he write a letter accepting the resignation. The letter stated that Lakeland had determined that the worker’s statement that he quit and returning of the library key constituted notice of resignation.
“The employer kept asking for a resignation letter, which wasn't forthcoming, and the employee actually said, ‘I'm not resigning, I'm not quitting,’ but the employer said it was considering this a resignation, but ‘We also want you to come in for one more shift, because it's hard for us to cover that shift,’” says McGuinness. “If you're treating this as a resignation, why are you asking the employee to come back and work a day?”
The worker reported for his next shift and, at the end of the day, the manager gave him the letter stating that Lakeland accepted his resignation. According to the director and the manager, the collective agreement asked for two weeks’ notice of resignation but the worker didn’t provide any notice.
According to the director, he thought that the worker had acted out of frustration and might reconsider his resignation, so he didn’t fill the position for eight months. However, the union filed a grievance arguing that the worker didn’t resign. The worker also denied acting aggressively or stating that he quit.
Subjective intent, objective conduct
The board referred to well-established arbitral principles regarding resignation. Key considerations included the need for both subjective intent - the employee's personal intention to leave - and objective conduct - actions clearly consistent with leaving the role. An impulsive statement made under stress or frustration doesn’t usually meet the criteria for resignation, particularly if the employee's conduct afterward aligns with continued employment, said the board.
The board noted that, despite the worker’s continued presence at work, management proceeded as though they believed he had resigned. Both the manager and the director described the worker’s actions as a resignation, while simultaneously acknowledging that he didn’t provide formal notice of resignation, the board said.
The board found that the worker didn’t intend to resign, as his handing over of the key was an emotional response rather than a genuine resignation. His immediate actions of taking back the key, continuing his duties, and confirming his intention to return for his next shift, were all consistent with ongoing employment, said the board.
The board also noted that past practice was that lunch breaks were informally switched and the schedule that day had already been changed with the other employee off sick. The manager provided “no reasonable explanation for why he would not allow [the worker] to take an earlier lunch break,” so it was understandable that the worker was “frustrated and dumbfounded by [the manager’s] position about the lunch break,” the board said.
The board also found that Lakeland’s actions were inappropriate when it deemed the worker’s conduct as resignation, neglecting its duty to seek clarity on the worker’s intentions. An employer has no say over an employee’s right to quit their employment, but the letter stated that Lakeland had “determined” that the worker had resigned based on an unverified assumption of resignation, the board said, adding that there were discrepancies in the manager’s and director’s version of events, raising doubts about the employer’s narrative.
Uncertainty over intention to quit
The board also pointed out that the director didn’t fill the worker’s position for several months because he admittedly believed that the worker might reconsider, further demonstrating the lack of a clear and unequivocal intention to quit.
“There was uncertainty over whether the worker posed it as a question, ‘Should I quit?’ or whether or not he had actually said ‘I quit’ - that was a key determination that the board had to make,” says McGuinness. “What was needed here was an objective and subjective intention to resign, a clear statement followed up with a letter or some kind of discussion with the employee about whether or not he had actually resigned - if there was uncertainty, it was up to the employer to say, ‘Hold on a second, let's have a meeting and discuss what this looks like.’”
The board determined that there was no clear indication that the worker resigned from his employment. Lakeland was ordered to reinstate the worker and compensate him for lost wages and benefits.
“It was incumbent on the employer to have a discussion with the worker and clear the air on what the intention was here, and give the worker an opportunity to cool off,” says McGuinness.
“If you can get a written notice of resignation then that's best, but if someone says, ‘I quit’ and throws their keys, walks out, and never comes back, that shows an objective and subjective intention to resign,” he adds. “But if you're going to rely on a resignation, then you have to make sure that it's clear - if there’s uncertainty, you have that discussion with the employee.”
See Canadian Union of Public Employees, Local 3077 v. Lakeland Library Region, 2024 CanLII 100203.
