It is a frequent occurrence in my practice that disputes arise over whether an employee has resigned from employment or has been dismissed. “You quit! No, you fired me!” is the employment equivalent of your kids yelling, “She hit me! He hit me first!”.
Situations do arise in which each party is pointing the finger at the other for triggering the cessation of the employment relationship. Knowing the legal test for each can help employers avoid finding themselves in the position of paying damages to the departed employee.
The Legal Test
B.C.’s Court of Appeal, in Burd v. Tahtsa Timber Ltd., recently confirmed that a dismissal and a resignation each requires “a clear and unequivocal act by the party seeking to end the employment relationship.” The Court went on to say…
“There is a distinction, however, in the tests to be met in order to establish each of these methods for ending the employment relationship. A finding of dismissal must be based on an objective test: whether the acts of the employer, objectively viewed, amount to a dismissal. A finding of resignation requires the application of both a subjective and objective test: whether the employee intended to resign and whether the employee’s words and acts, objectively viewed, support a finding that she resigned.”
Taking the resignation test, first, it has often been stated that in order to amount to a resignation, there must be a demonstration of the employee’s intention to resign (that’s the subjective part) and the employee must subsequently act in a fashion which confirms that intention (the objective part). In a simple case, saying “I quit” followed by cleaning out his/her desk turning in keys, leaving and never returning would satisfy that test.
It’s when the employee says, “I quit”, but then doesn’t act to confirm that intention that things get a little muddy. For instance, it’s not at all uncommon for an employee, in the heat of the moment, to state his/her intention to quit and to storm out but, the next day, to come back to work and apologize and express a desire to remain employed. Those facts don’t satisfy the two-part test.
Dismissal, on the other hand, involves only a single-step test, whether the employer’s actions
leave no reasonable doubt in the mind of the employee that his or her employment has already come to an end or will end on a set date in the future. Once the employer communicates that intention, no subsequent or confirming, conduct is necessary.
A Real Life Example
In another decision, Beggs v. Westport Foods Ltd., B.C.’s Court of Appeal tackled one of those scenarios in which it was quite arguable whether the employee had quit or had been dismissed.
In brief, Beggs went off work after a fire destroyed her home. The following day, she phoned her supervisor and advised him that she would not be coming into work as scheduled for that day and that she did not know when she would be able to return to work.
During her absence, the employer tried to contact her but found that her phone was disconnected. After Beggs had been absent for almost a month, the payroll department issued an ROE indicating that she had quit her employment.
Beggs made no attempt to contact the employer until, almost 2 months after her absence had commenced, she telephoned the appellant’s head office to ask for an ROE based on sick leave. She was advised that an ROE had been prepared for her two weeks earlier and that she could pick it up. When Beggs attended to pick up the ROE, she saw that it recorded that she had quit her job. The envelope also contained her final paycheque.
An exchange of letters followed, with Beggs’ counsel asserting a claim for wrongful dismissal damages and the employer’s counsel denying the validity of that claim, asserting that “it was reasonable for my client to conclude from Ms. Beggs’ extended absenteeism, that she had abandoned her job and quit.”
The Court decided that Beggs had not resigned from her employment but, instead, had been dismissed by her employer. It was the response of the employer’s lawyer which the Court found had effectively ended the employment relationship…
“It was the subsequent exchange of correspondence between the parties’ lawyers, which began as a demand by the respondent’s lawyer for an immediate lump sum payment or litigation would be commenced, and ended with the appellant’s lawyer rejecting the respondent’s documented claim of illness as the reason for her absence, that effectively ended the employment relationship. By denying the respondent’s assertion that she had not quit her job in the face of medical evidence that she was unable to work, the appellant effectively dismissed the respondent. It was, in my view, the August 17, 2009 letter that constituted the clear and unequivocal act of dismissal.”
In the Court’s view, Beggs’ conduct had not satisfied the two-part test for resignation but the employer’s conduct (via its lawyer’s letter) had constituted a “clear and unequivocal act of dismissal”.
There are two lessons to be learned, here. First, always be certain that an employee’s subsequent conduct confirms his/her apparent intention to resign from employment. Second, be careful what you instruct your lawyer to say on your behalf in on-the-record, with prejudice letters.
This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.