Answering this question is, sometimes, not easy. The issue was most recently discussed by the Court of Queen’s Bench of Alberta in Geddes v Silvestri Holdings Inc, 2014 ABQB 416 (CanLII), a case in which the court was required to consider whether an employee resigned or was constructively dismissed.
The employee and her business partner had a personal relationship and lived together. The business grew significantly through their efforts. The personal relationship broke down and they ceased cohabiting. Coming into work was very difficult for the plaintiff after the breakup
She wrote to the employer on September 8, 2009:
… I am hoping that you make an announcement today that I will not be returning to the office. …. I can no longer look at your face on a daily basis. …I am willing to be on call on weekends …only. … As a shareholder I still get my salary until the company sells. I will earn it like you working two days a week … This way we do not have to see each other, which is what I want.
The next day, she received the following response:
I am going to talk to my lawyer today about your salary. I think that you should work 5 days a week for your salary and if that is not suitable for you I want[sic] a letter of resignation from you so that I can look for another dispatcher and keep operating until the co. sells or I decide to shut[sic] it down. You say that you don’t want to see my face well I really don’t want to see yours either…
She responded, that very day with an email simply stating “Consider this my resignation letter.” however an official resignation letter was requested. Further emails were exchanged including the following from the plaintiff:
I am not resigning. I have been forced out by your behavior checking with my lawyer regarding severance pay.
Email exchanges continued with the plaintiff stating that she was taking a “stress leave”. The email exchanges continued. She did not return to work, though appears to have been willing.
In discussing whether she resigned or was constructively dismissed, the Court put the test for a valid resignation as follows:
To constitute a voluntary resignation, the employee must take a “clear and unequivocal” act to terminate the employment relationship. In determining whether an employee has resigned their position the Court applies a subjective and an objective test: subjectively, did the employee intend to resign; and, when objectively viewing all the circumstances, whether a reasonable person would have understood from the employee’s actions and words expressed, at the time or shortly following, that the employee had resigned: Beggs v Westport Foods Ltd, 2011 BCCA 76 (CanLII), 2011 BCCA 76.
In the circumstances of this case, the court concluded that the employee had not voluntarily resigned. In particular:
.... her subsequent emails and actions demonstrate that Ms. Geddes had not resigned her position with the Business but took stress-leave for approximately eight weeks on the advice of her physician (although there was no express consent by the Business for her to do so). Mr. Silvestri requested a formal letter of resignation but Ms. Geddes refused to provide one. On 27 October 2009, Ms. Geddes advised Mr. Silvestri that she intended to return to work.
The employer had terminated her employment when it refused to allow her to return to work at the end of her stress leave. The employer had replaced the plaintiff.
Whether a resignation is a voluntarily resignation can be a complicated issue and even where a formal letter of resignation is provided, factors and events may undermine the resignation.