Seinfeld, Season 2, Episode 7, “The Revenge”, in a boardroom:
LEVITAN: Is that Costanza over there? What are you doing here?
GEORGE: What?
LEVITAN: Am I crazy, or didn’t you quit?
GEORGE: When?
LEVITAN: Friday.
GEORGE: Oh, what? What? That? Are you kidding? I didn’t quit. What? You took that seriously?
The Revenge is one of my favorite episodes of Seinfeld. In it, George Costanza quits his job after not being allowed to use his boss’ private washroom. After rethinking his decision over the weekend, George decides to go back to work on Monday and pretend that nothing happened. This leads to the above dialogue, it does not work out well for George, and his boss insists that he leave.
Seinfeld is a rich source of employment law related matters (see our blog on workplace romance and George’s interaction with a member of the cleaning staff). However:
- Is it, an accurate depiction of the law?
- Can an employee retract their resignation? and
- Does their employer have to accept this retraction?
Unsurprisingly, the answer to all these questions is “it depends”.
The Law
At law, a resignation is not effective unless the employee’s intentions are “clear and unequivocal”, and the employer has accepted the employee’s resignation.
While this appears simple, in practice this rule has been expanded to mean that an employee who resigns while upset has a cooling off period, during which time they can change their mind and take back their decision to resign. Where this happens (unless, as outlined below, the employer has accepted this resignation), the employer must accept the employee’s decision and permit the employee to continue in their role.
Clear and unequivocal also means that the employee’s decision to resign cannot be contingent on anything else. For example, if an employee indicates that they will resign if their employer decides to proceed with a change to the work process, their resignation will only be valid if the employer proceeds with this change. If the employer decides not to make this change, the employee’s stated intention to resign will no longer be valid, and the employer may not proceed to end the employee’s employment, even if it wants to.
What the employer’s acceptance of the resignation must look like is not clear. Typically, an employer would accept the employee’s resignation in writing. This would outline the formalization of the end of the employee’s employment, including:
- paying their outstanding wages,
- obtaining the employer’s property while returning the employee’s property to them, and
- issuing a Record of Employment.
This may or may not be enough to finalize things – the employee may still attempt to retract the resignation, which the employer may have to accept.
If the employer refuses to accept this retraction and proceeds as if the employee has resigned, the employee may claim that the employer has in fact wrongfully dismissed them and seek their entitlement to reasonable notice at common law. To defend against this claim, the employer would have to show that the employee’s resignation was clear and unequivocal, and that the resignation had been accepted.
Where the employer has relied on the resignation by hiring for the vacant role or taking steps towards hiring (posting job advertisements or conducting interviews), such that it would cause the employer some prejudice to accept the employee’s return, the employer will be in a stronger position to reject the employee’s attempt to return to work – and defend any subsequent claim of constructive dismissal.
Takeaways
So, did George resign and was his employer required to accept his decision to retract his resignation? The Revenge does not make clear whether George’s employer had taken any steps towards finding George’s replacement, but for the sake of argument we can assume that it had not. George quit while he was upset about his inability to access his boss’ facilities, and then returned to work as though nothing had happened. It is arguable that this was enough to constitute George indicating that he had retracted his resignation and should have at least prompted a conversation with himself and his boss (with human resources present).
As is often the case, communication is key, closely followed by documentation of that communication. Ambiguity is often the enemy of the employer in these situations.
We assist both employers and employees in all aspects of the employment relationship, and would be happy to assist you whether you are an employee whose employment has been terminated, an employer addressing a questionable resignation, or someone drafting or in receipt of an employment agreement. Feel free to check out our FAQs and contact us for advice tailored to your situation.
