Should you accept your employer’s invitation to resign rather than be fired?

Skip to Content News Archives Economy Energy Oil & Gas Renewables Electric Vehicles Mining Commodities Agriculture Real Estate Mortgages Mortgage Rates Finance Banking Insurance Fintech Cryptocurrency Work Wealth Smart Money Wealth Management Investor Personal Finance Family Finance Retirement Taxes High Net Worth FP Comment Executive Women Puzzmo Newsletters Financial Times Business Essentials More Innovation Information Technology FP500 Podcasts Small Business Lives Told Tails Told Shopping Financial Post Store Obituaries Place a Notice Advertising Advertising With Us Advertising Solutions Postmedia Ad Manager Sponsorship Requests Classifieds Place a Classifieds ad Working Profile Settings My Subscriptions My Offers Newsletters Customer Service FAQ News Economy Energy Mining Real Estate Finance Work Wealth Investor FP Comment Executive Women Puzzmo Newsletters Financial Times Business Essentials This advertisement has not loaded yet, but your article continues below.HomeLegal PostWorkShould you accept your employer's invitation to resign rather than be fired?Employers trying to save money through gamesmanship can end up costing themselves considerably more in the endLast updated 14 minutes ago Employees agree to resign for all sorts of reasons. But a genuine resignation means forfeiting significant legal rights. Photo by Andrey Popov/Adobe StockCanadian businesses are about to make some difficult decisions.THIS CONTENT IS RESERVED FOR SUBSCRIBERS ONLYSubscribe now to read the latest news in your city and across Canada.Exclusive articles from Barbara Shecter, Joe O'Connor, Gabriel Friedman, and others.Daily content from Financial Times, the world's leading global business publication.Unlimited online access to read articles from Financial Post, National Post and 15 news sites across Canada with one account.National Post ePaper, an electronic replica of the print edition to view on any device, share and comment on.Daily puzzles, including the New York Times Crossword.SUBSCRIBE TO UNLOCK MORE ARTICLESSubscribe now to read the latest news in your city and across Canada.Exclusive articles from Barbara Shecter, Joe O'Connor, Gabriel Friedman and others.Daily content from Financial Times, the world's leading global business publication.Unlimited online access to read articles from Financial Post, National Post and 15 news sites across Canada with one account.National Post ePaper, an electronic replica of the print edition to view on any device, share and comment on.Daily puzzles, including the New York Times Crossword.REGISTER / SIGN IN TO UNLOCK MORE ARTICLESCreate an account or sign in to continue with your reading experience.Access articles from across Canada with one account.Share your thoughts and join the conversation in the comments.Enjoy additional articles per month.Get email updates from your favourite authors.THIS ARTICLE IS FREE TO READ REGISTER TO UNLOCK.Create an account or sign in to continue with your reading experience.Access articles from across Canada with one accountShare your thoughts and join the conversation in the commentsEnjoy additional articles per monthGet email updates from your favourite authorsSign In or Create an AccountWith tariffs squeezing margins, employers will limit hiring, restructure departments and eliminate jobs. Most will do what they should: make the business decision, tell employees honestly what is happening and, in the event of dismissals, pay them what they are legally owed.Others may take a different route.FP Work touches on HR strategy, labour economics, office culture, technology and more.By signing up you consent to receive the above newsletter from Postmedia Network Inc.A welcome email is on its way. If you don't see it, please check your junk folder.The next issue of Work will soon be in your inbox.We encountered an issue signing you up. Please try againIt is an old tactic. And when the economy becomes difficult, it is particularly tempting.The economics are obvious. An employee who is dismissed without cause is entitled to statutory payments, severance and common law reasonable notice. An employee who resigns ordinarily gets none of those things. So why not turn a termination into a resignation?The employers who play this game follow a familiar three-step playbook.First, the microscope appears.An employee who was previously trusted suddenly finds everything being challenged. Managers demand constant updates. Arrival and departure times are scrutinized. Minor decisions that were never a concern suddenly become performance issues. The employee’s judgment is questioned and ordinary mistakes become management events.To be clear, businesses under financial pressure should manage employees and their finances more closely to eliminate seepage and inefficiencies.But sometimes the objective is different. The employer is calculatedly creating pressure so that the employee decides staying is not worth it.Instead, they should remain professional. Follow reasonable instructions. Do the job. And start keeping records.That means preserving emails, performance reviews, targets, instructions and evidence of what was actually expected. It means resisting the understandable temptation to fire off an angry email explaining how unfairly they are being treated.The objective is not to win the argument in the moment. It is to avoid giving the employer a legitimate reason to terminate for cause.Then comes step two: the paper trail.Suddenly, everything is being documented.Lateness that was previously ignored becomes a formal concern. Performance targets become written warnings. Communication issues are recorded. Minor mistakes are catalogued. A performance improvement plan appears.There is nothing inherently improper about any of this.Employers are entitled to manage performance. They should document legitimate concerns. A properly designed performance improvement plan can be an entirely appropriate management tool.This advertisement has not loaded yet.This advertisement has not loaded yet, but your article continues below.But there is a difference between documenting performance and manufacturing a record.When expectations suddenly become vague, targets impossible, deadlines unrealistic and a previously strong performance is mysteriously forgotten, an employee should take notice.A thick personnel file does not establish just cause. Courts do not decide whether an employee deserved dismissal by counting the number of warnings in a file. They examine what actually happened.An employer that manufactures a record can create a bigger problem than the one it was trying to solve.If the documentation is exposed as contrived, the employer’s credibility will be badly damaged. And credibility is often the employer’s most important asset in litigation.Employees should respond to inaccurate allegations promptly and calmly in writing. If an allegation is wrong, say so. Provide the supporting documentation. Identify inconsistent expectations. Preserve earlier positive reviews.Do not assume silence is safer. It may later be characterized as acceptance of the employer’s version of events.Then comes step three: the resignation invitation.This is often presented as an act of kindness.“Things aren’t going well.”“Maybe this isn’t the right fit anymore.”“Termination could be coming.”“Would you prefer to resign?”That can be an extraordinarily expensive question to answer incorrectly.Employees agree to resign for all sorts of understandable reasons. They are embarrassed. They are frightened. They are worried about being fired. They are told a resignation will look better on their resumé.But a genuine resignation means forfeiting significant legal rights.A voluntary resignation can eliminate claims for common law notice, statutory termination pay and, potentially, severance. It can also create complications around Employment Insurance.There are circumstances in which a resignation induced by pressure or intolerable changes to employment can be challenged and treated as a dismissal. But proving that an apparent resignation was not truly voluntary is considerably harder than refusing to resign in the first place.So if an employer asks you to resign, do not resign in the meeting.Do not sign a resignation letter. Do not sign a release. Do not sign a new agreement or other document that you do not understand.Ask for the proposal in writing. Then obtain legal advice.And employers should take their own advice before trying this strategy.There is nothing unlawful about eliminating a position because tariffs, declining revenues or restructuring make it unnecessary. Employers are entitled to make difficult business decisions. But if a job genuinely must disappear, eliminate the job.Do not manufacture misconduct to avoid paying the employee. Do not discriminate in deciding who will be selected for termination. Do not pressure someone into surrendering rights that would otherwise need to be paid.And remember that economic hardship may explain why an employee is being dismissed. It never eliminates the employer’s obligation to comply with the employee’s contractual and common law rights.The irony is that employers trying to save money through gamesmanship can end up costing themselves considerably more.A manufactured performance record can lead to litigation. An improperly handled termination can create additional liability. A dishonest explanation for a restructuring can undermine the employer’s credibility. And conduct designed to force someone out can itself become evidence in a later claim.Employees should also be careful not to overreact.Not every critical email means a termination is imminent. Not every performance improvement plan is a pretext. Not every increase in management scrutiny is a constructive dismissal.The signs, though, are worth remembering.First comes the microscope. Then comes the paper trail. Then comes the invitation to resign.When that third step arrives, remember one thing:Do not make the employer’s decision for them. If the employer wants to terminate you, let the employer terminate you.At least then you have not risked forfeiting the substantial amounts you are owed.Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers with offices in Ontario, Alberta and British Columbia. He practises employment law in all provinces and is the author of six books, including the Law of Dismissal in Canada. Arash Omidvar is an associate at Levitt LLP.We apologize, but this video has failed to load.Notice for the Postmedia NetworkThis website uses cookies to personalize your content (including ads), and allows us to analyze our traffic. Read more about cookies here. By continuing to use our site, you agree to our Terms of Use and Privacy Policy.