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Can I rescind a resignation made while suffering from mental illness?

THE QUESTION

I was at a new job with a six-month probationary period, with a supervisor who "kidded" about losing my "continued employment." The project deadlines were impossible to meet without working evenings and weekends and no overtime was paid. "Just get through probation," I thought, and I'd be okay. But after three months and little sleep at night, I cracked. After working through a holiday weekend, I resigned through early-morning e-mail and went to the emergency room, feeling suicidal. I was detained under the mental-health act and deprived of my phone. When released after 10 hours, I e-mailed my boss, explaining what had happened. She didn't respond. The next day, she called with the HR director on the line and said the resignation was irrevocable. Now I'm worried that word could get out about this and jeopardize my chances of getting another job.

THE FIRST ANSWER

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Bill Howatt

Chief research and development officer of work force productivity, Morneau Shepell, Toronto

Your old employer cannot release any information about your health or your employment. If you ever obtain any evidence that they have, you would be wise to immediately hire an employment lawyer. If this employer is smart, this situation should have no impact on future career opportunities. It may be too late for you at this job, since you were on probation and did resign. However, only an employment lawyer can give you a clear answer.

If you step back, there are valuable insights about the importance of managing your daily mental health. Mental health has nothing to do with willpower or mental toughness. When people are under chronic stress, and with no relief, there is a negative impact on both the mind and body. Whenever you start to notice a situation is having a negative effect on your day-to-day functioning, this is a warning sign that it is time to act. Action can range from taking a break, to looking for a solution that reduces the strain. If nothing comes to mind, ask a trusted peer, family doctor or for professional support. (e.g. employee and family-assistance representative).

The lesson for yourself and others is to ensure that when taking a new job that has high demands is to set realistic expectations and boundaries. Your focus and drive to push yourself to get a job almost killed you. No job is worth that.

THE SECOND ANSWER

George Cottrelle

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Partner, Keel Cottrelle LLP

All jurisdictions in Canada have human-rights legislation protecting employees with mental-health disabilities. Certain provinces have workplace harassment legislation. Employees who are hired for a probationary period have all these rights, together with an entitlement to overtime pay, if applicable, under governing legislation. You communicated your resignation to your employer when suffering from a serious mental-health disability. Once informed of your disability, your employer had a legal duty to take the appropriate action to assess what accommodation you required, and to provide appropriate accommodation for your return to the workplace.

It is highly questionable whether your resignation was valid given your disability at the time you resigned. Rather than rushing to accept your resignation and close the book on the matter, your employer should have taken steps to determine if you needed accommodation, and offered you a reasonable opportunity to rescind your resignation.

If the excessive workload was outside the normal scope of your position, somehow to test you as part of your probation, then – coupled with comments from your supervisor about losing your employment – this could have constituted workplace harassment under applicable legislation, or under your employer's harassment policy, if any.

Your employer should not disclose your personal health information. Depending upon the jurisdiction, there may be express statutory provisions preventing the disclosure. In any event, potential employers are prohibited from discriminating against you on the basis of your mental-health disability.

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About the Author
Nine To Five contributor

Bill More

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