Many employees would be sceptical about signing undated letters of resignation, especially in the light of recent developments in Jamaica. Perhaps employers should likewise be cautious about using those letters, because they could find themselves breaching an employment contract or facing a claim of unjustifiable dismissal.

The practice of using undated resignation letters might have been followed routinely in political circles until the recent judgement of the Supreme Court stirred up a hornets’ nest. In a landmark decision, the Court ruled that the leader of the Opposition Jamaica Labour Party (JLP) Andrew Holness acted unconstitutionally, unlawfully and contrary to public policy when he procured pre-signed and undated letters from the then (and maybe still current) senators Arthur Williams and Christopher Tufton.

The letters were signed at the time of the senators’ appointment and were later used by the Opposition Leader to effect their resignation. In its judgement, the court expressed concern that this practice had the potential to interfere with the senators’ freedom of thought, conscience, expression and association guaranteed by the Constitution because the letters were procured for the specific purpose of ensuring that the senators would abide by the official view of the JLP on the Caribbean Court of Justice (CCJ).

The political sphere is but one context in which pre-signed undated letters of resignation are used. Prospective employees of corporate entities might be, and sometimes are, asked to sign similar letters at the beginning or during the course of their employment. In the ordinary course of things, such a practice would not rise to the level of a constitutional claim, given the usually private commercial nature. So what exactly is the legal effect of such letters when procured in the normal setting of an employer-employee relationship?

Depending on the different scenarios, the answers might vary.

Pre-signed undated letters of resignation will be void and of no effect if signed under compulsion or duress. In 2000, the Malaysian High Court had to decide whether undated resignation letters signed by a director upon his appointment to a company were valid to effect his resignation.

That court found that as a matter of law, resignation under compulsion is no resignation. It concluded that where a person is required to sign an undated letter as a condition for appointment as a director, the only inference that could be drawn is that it was signed under compulsion or duress. It appears from this case and from general employment law principles that such letters cannot be valid to effect any resignation, unless they reflect the present unforced intention of an employee to resign.

An employer who forces an employee to resign in these circumstances could be in breach of the employment contract.

Alternatively, ‘resignation’ in those circumstances could be considered as a constructive dismissal and the employer could face a claim for unjustifiable dismissal.

But what if these letters were signed without duress, fraud or mistake and with full advertence of the circumstances? For example, an employee could sign an undated letter of resignation agreeing that it will take effect upon the occurrence of a particular event. Upon the occurrence of that event, that letter of resignation might be effective to bring the employment contract to an end. Such an agreement might be as good as if a date had been inserted upon which the employment contract would expire by effluxion of time.

Another consideration that could apply is the common-law principle that documents signed with blank spaces can still be valid when those blank spaces are later filled up by someone who is authorised to do so. In the case of cheques, for example, it is well established that a blank cheque signed by a customer of a bank will be binding on that customer where the customer’s agent later fills in the blank spaces.

If we stretch this principle to its logical conclusion, it would be within good reason to conclude that pre-signed letters of resignation could be valid when later completed by an employer who would have been given the authority to do so.

The courts in Jamaica have not decided this issue except within the very specific political and constitutional context of the Arthur Williams case. Of significance, the Court noted that Mr Holness had no authority to remove a senator. On the other hand, an employer does have the power to terminate an employee’s contract. Nevertheless, employers in particular should proceed with caution before speeding through the green light, especially because the legality of this practice is not necessarily in black and white.

Jermaine Case is an associate at Myers, Fletcher & Gordon and is a member of the firm’s Litigation Department. He may be contacted via jermaine.case@mfg.com.jm or you can visit the firm’s website at www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.