Can an employer withdraw a termination of employment after it has been delivered to its employee?
In a series of cases from the Ontario Superior Court of Justice, one of which I argued, judges have consistently held that an employer cannot.
For those looking for a clear answer on whether an employer can rescind an unconditional termination of employment, please consider the following:
In Nason v Thunder Bay Orthopaedic Inc., 2015 ONSC 8097, Justice Fregeau of the Ontario Superior Court of Justice wrote the following:
“The issue is whether an employer can unilaterally withdraw an unconditional termination of an employee’s employment contract prior to the effective date of termination. In my opinion, an employer cannot do so.”
In Farah v EODC Inc., 2017 ONSC 3948, Justice Kershman of the Ontario Superior Court sitting at Ottawa wrote:
“The Court agrees with the conclusion of Fregeau J. [in Nason] in that an employer cannot unilaterally withdraw an unconditional termination of an employee’s employment contract prior to the effective date of termination. [I]n the present case, the effective date of termination was at the time on September 1, 2016 that EODC handed the Applicant his letter of termination and escorted him from the building.”
More recently, in O’Donnell v. United Rentals of Canada, Inc., 2018 NLSC 91, the Supreme Court of Newfoundland and Labrador held: “An unequivocal letter of termination, as we have here, cannot be unilaterally revoked by the Defendant. For the revocation to be effective, it must be clear and unequivocal and, in this current context, must be acknowledged and accepted by the Plaintiff.” [Citations omitted]
But what if the employee wishes for the employer to changes its mind? For example, if the employee wants his or her job back?
In Roche v. Sameday Worldwide, 2014 CanLII 8782 (NL SC), the Supreme Court Of Newfoundland And Labrador Trial Division (General) held that where an employee had requested that the termination decision be reversed, and the employer agreed to that request, the employee could not then claim wrongful dismissal.
The distinction between Roche and the three cases referenced before is the employee’s actions following the receipt of the notice. In Roche, the employee agreed to allow her employer to rescind the notice before it had taken effect. In the other cases, the employee did not agree to the rescission, such that the employer was stuck with its decision.
Contact Me
Sean Bawden is Experience. At Work.
I am an experienced employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP, which is based in Ottawa. I have appeared in courtrooms all across Ontario from Stratford, to L’Orignal, to Thunder Bay.
For 2.5 years I was in-house legal counsel providing employment law advice to one of Canada’s largest corporations and appeared in labour courts and tribunals literally the world over.
I am also a part-time professor at Algonquin College teaching Employment Law. I have previously also taught Trial Advocacy for Paralegals and Small Claims Court Practice.
I can be reached by email at [email protected] or by phone at 613.238.6321 x233.
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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
