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Can I take that back, please? When employees seek to set aside notice of resignation | The HR Space

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Labour, Employment and Human Rights Bulletin

Most written agreements between employers and employees contain language confirming that the employee has signed the agreement freely and voluntarily. However, when an employee provides verbal or written notice of resignation, this type of formal language is generally absent and the notice of resignation is generally assumed to be valid as given. However, there are rare occasions when an employee later seeks to set aside or 'take back' his or her notice of resignation. In this situation, it becomes necessary to assess the legal validity of the notice of resignation – i.e. was the notice of resignation given freely and voluntarily by the employee and on an informed basis?

An analysis of this issue was recently undertaken by a Québec arbitrator, who held that an employee's notice of resignation was valid, even though the employee claimed she had been depressed at the time she provided notice.


In CISSS de la Montérégie-Ouest,[1] [only available in French] a specialized educator at a centre for people with intellectual disabilities and behavioural problems was criminally charged with conspiring to administer a drug overdose to a client of the centre while at work. After the educator was charged, she learned that a coordinator employed by the centre held her accountable for the client's death. This accusation led to a dispute between the educator and the coordinator.

Concurrently with these events, and particularly because she no longer wanted to be in contact with the coordinator, the educator sent a letter to the employer announcing her resignation. In her letter, she explained that she was leaving the organization due to the lack of support she had received in relation to the criminal charges and the associated damage to her reputation.

Five days later, the educator changed her mind. She informed her employer that she did not want to resign and wished to return to work. She explained that she had been depressed when she gave her notice of resignation, partly because of the false accusations made against her by the coordinator.

Following the employer's refusal to reinstate the educator, the union filed a grievance asking that the resignation letter be cancelled and the educator to be reinstated to her position.

The union argued that the coordinator's threats combined with the criminal charges brought against the educator caused the educator to become depressed and to resign her employment. As a result, the resignation had not been freely and voluntarily given and the employer's refusal to reinstate the employee amounted to a constructive dismissal.

The employer argued that the resignation letter was explicit and that, in the absence of medical evidence that the educator was incapable of making an informed decision, her incapacity could not be established.


The arbitrator stated that the educator had the burden of proving that her resignation had not been freely and voluntarily given, but was instead the result of error or fear, such that her consent was vitiated. 

Following an analysis of the facts, the arbitrator found that the coordinator's accusations could not have vitiated the educator's consent. Even though the coordinator's allegations might have been false, there was no evidence of any threat from the coordinator to the educator that would have caused her to resign. Consequently, the educator had not discharged her burden of proof.  In arriving at this conclusion, the arbitrator specifically considered the fact that the educator's resignation letter made no reference to any allegations of undue pressure.

The arbitrator also rejected the educator's argument that her mental state justified setting aside her notice of resignation. Without a medical certificate confirming that she was incapacitated when she resigned, or highly convincing facts in support of this allegation, the arbitrator was unable to find that such incapacity existed. Although the educator had led evidence that her doctor had increased her medication following her resignation, the arbitrator concluded that this evidence was not sufficient to establish incapacity.

Lastly, the arbitrator added that even if there had been evidence that the educator was depressed when she resigned, this would not necessarily mean that she was incapable of freely and voluntarily resigning her employment, as depression does not automatically result in incapacity. When medicated, a person suffering from a psychological illness is often capable of understanding the scope and consequences of his or her actions. Consequently, the arbitrator found that the educator, even though potentially ill, had capacity to submit her notice of resignation in a free, voluntary and informed manner.


This arbitral decision confirms that an employee who wishes to challenge the validity of his or her notice of resignation has the burden of proof to establish incapacity at the time the notice of resignation was given. Furthermore, evidence that an employee felt threatened or was suffering from a mental illness at the time the notice of resignation was given will be insufficient unless there is also evidence that these circumstances actually affected the employee's capacity to provide free and informed consent.

Therefore, an employee's burden of proof to set aside a unilateral notice of resignation is high. Despite this, we recommend that employers always obtain notice of resignation in writing from an employee, confirming the employee's intention. 

[1] Syndicat des travailleuses et des travailleurs en réadaptation de la Montérégie Ouest (CSN) c. CISSS de la Montérégie Ouest (Services en Réadaptation du Sud-Ouest et du Renfort, SRSOR), 2016 QCTA 463 (Arbitrator Mtre Pierre Laplante).

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