By Ivan Merrow
Getting fired is never pleasant, but sometimes it happens in unexpected ways. There is a big difference between resigning from your employment voluntarily and resigning after being pressured to do so. A voluntary resignation generally provides no legal remedy against your employer: you chose to end your employment contract, did not suffer damages, and should not be compensated. However, if you feel that your employer forced you to resign to your detriment, you may be entitled to compensation.
Was my resignation voluntary?
To voluntarily resign in the eyes of the law, you have to demonstrate a clear and unequivocal desire to end your employment. This desire can be expressed in writing, orally, or through your conduct. For example, if you make it very clear that you cannot possibly work for your employer if X happens, and then X happens, you have voluntarily resigned. If you are healthy but stop coming into work and express no intention to return, you have likely voluntarily resigned.
Your voluntary resignation can be challenged on the basis that it was not accepted, was withdrawn before your employer acted on it, or was insincere. However, for the purposes of this article, let’s focus on situations where your resignation was not voluntary. You feel your employer forced you to resign and you want a legal remedy.
What counts as being “forced” to resign?
The legal term for being forced to accept or terminate an agreement is called being under “duress.” Duress can be difficult to prove—the law is reluctant to let people back out of voluntary agreements by arguing they were forced to do so. To show that your employer forced you to resign, you have to demonstrate that the pressure was illegitimate and applied to such an extent that you felt you were given no choice.
Important factors include whether you protested the resignation, whether you received legal advice and still resigned, whether you took steps to avoid resigning, and whether your employer provided you with an alternative. Even so, not all alternatives will convince a court that your resignation was voluntary.
Does it matter if my employer gave me a choice?
Whether you resigned by letter, conversation, or conduct, what happened before you resigned matters. Did your employer give you a choice? Resigning after being given a choice between resigning and getting fired is not considered voluntary. However, it does matter whether you benefitted from the choice. If your employer offers you significant benefits for a resignation, and you accept the deal for personal gain, then your resignation is more likely to be considered voluntary.
Does the timing matter?
If you felt forced to resign because you experienced harassment, demotion, threats, or unpleasant behaviour from your employer, then the resignation was more likely involuntary. However, if the unpleasant events you blame on your resignation happened years before you resigned, it is less likely you can successfully argue you were fired. The details are important, and play a large role in determining whether you resigned voluntarily or under duress.
Key message
Resigning from your job does not necessarily mean that it was voluntary. If you feel you were forced to give up your job, you may have a legal remedy against your former employer. However, every situation is different, and the examples in this article may not apply to your case. Your best course is to consult a lawyer about your rights and the remedies available to you. If you have questions about this article or about your resignation, contact the employment lawyers at Devry Smith Frank LLP at 416-446-1400.