Edited by Jennifer M. Fantini and Naomi E. Calla
What may initially appear to be an employee's intention to quit should be examined carefully before an employer relies upon the employee's resignation. Two recent decisions by the British Columbia Supreme Court illustrate the difficulties in determining whether an employee has truly resigned his or her employment, and if not, the costs of being mistaken.
In Haftbaradaran v. St. Hubertus Estate Winery Ltd.,1 the employee had worked as a winemaker for the employer for approximately two years. An initial confrontation resulted in the employee handing in his keys to one of the winery owners. Then the employee had a subsequent heated discussion with the other winery owner after failing to adequately complete a task. The employee was very upset and refused to leave the owner's office as requested, alleging that he was undervalued and unappreciated. The owner became agitated and told the employee that if he was so unhappy he should look for another job. The employee placed his keys on the owner's desk, shook his hand, and stated, "Good luck making wine" before gathering his belongings and exiting the premises. That afternoon the owners sent the employee an email outlining that his departure would have to be coordinated and advised that they needed a response from him by a certain date, otherwise they would assume he had already resigned. The employee claimed he never intended to quit and alleged that he was wrongfully terminated.
The court agreed with the employee, finding that a reasonable observer would not conclude from the employee's words and actions that he had clearly and unequivocally quit his job, but rather that it was a heated situation and the employee was seeking praise. The court also found that the winery owner's words in the meeting were an attempt to get the employee to leave his office and were not consistent with an intention to terminate him. However, the court concluded that the employer's email following the meeting terminated the relationship because, instead of referencing the ambiguity of the situation and offering an opportunity for reconciliation, the employer made it clear that the employee was not wanted back. This mistake proved costly, as the employee was awarded pay in lieu of reasonable notice of 8 months based on his specialized skills and the time it took to secure new employment.
A similar situation arose in Balogun v. Deloitte & Touche, LLP.2 The employee became very upset over the employer's refusal to give him a raise and claimed that no one at the company was qualified to evaluate his work. When the employer asked what this meant for the future, he replied, "I'm out of here" and left the premises after turning in his keys and laptop. The employee had a two-week vacation scheduled starting that day. Upon his return home from vacation, he found an ROE from the employer indicating that he had quit.
The court concluded that there was no clear and unequivocal evidence that the employee had intended to resign, as his statement in the meeting and subsequent departure were consistent with the fact that it was the end of the work day and he was scheduled to commence a vacation. The court concluded that handing in his keys and laptop occurred under emotional stress and that the plaintiff was in a rush to leave for vacation.
The court noted that the employer did not request a letter of resignation from the employee in accordance with company policy. This was evidence of the employer's uncertainty about the situation, and the employer's failure to take any steps to clarify the employee's intention before delivering the ROE. The court concluded that the employer should have followed up by phone or email or by sending a letter. By simply delivering the ROE, any obligation for the employee to contact the employer had been extinguished. The seven-month employee was awarded two months pay in lieu of notice.
These recent cases illustrate the risks faced by employers in simply assuming that an employee has resigned in ambiguous situations. Even where an employee's actions and words indicate a desire to quit, employers should still be cautious and take steps to clarify the employee's intention.
In both cases, the incidents involved emotionally-charged circumstances where no chance was presented to the employees afterwards to reconcile with their employers, and the employers took no steps to seek clarification from the employee. In circumstances where an employer has any doubt as to the sincerity or validity of an employee's apparent resignation, the employer may want to consider:
- following up with the employee immediately or very soon after the incident to clarify or confirm the employee's intentions to resign;
- requesting written confirmation of resignation, especially where it is normally the employer's policy to do so; and
- providing the employee with an opportunity to resolve any conflict or differences with the employer.
These steps will assist the employer to confirm the employee's intentions before accepting the resignation. In such cases, courts are more likely to find that the employee has resigned.
1 2011 BCSC 1424.
2 2011 BCSC 1314.About BLG
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