(e) Affirmation of the contract and waiver of the right to resign by the employee

At common law and under statute the employee must not have affirmed the contract and waived the right to resign in response to the breach. This is sometimes mistakenly referred to as 'waiving the breach.' This should be referred to correctly as 'waiving the right to resign in response to the breach.' The breach cannot be waived save by estoppel – what is waived is the right to resign and claim to have been constructively dismissed because of it. A party who abandons the right to accept the repudiatory breach will not generally abandon the right to claim damages for the losses suffered by the breach. Thus, if the employee affirms the contract, then they do not waive the breach in the sense that they can still sue for the losses