A difficult employee states that he is quitting and walks out
the door. Problem solved? Or just beginning? Recent cases
illustrate that it's hard to know when an employee has really
quit, at least in the eyes of the courts. And it can be expensive
when you get it wrong.
Taking Cues from the Previous Pattern of the Employment
In Haftbaradaran v. St. Hubertus Estate Winery
Ltd. (PDF) at first glance it appeared clear the employee
quit. After a dispute, the employee placed his keys on his
boss' desk, shook his hand and wished him luck with his
business. He gathered his personal effects and walked out. Despite
this, the BC Supreme Court disagreed with the employer's
conclusion that Haftbaradaran had quit.
The Court ruled that the employee's conduct must be judged
against the parties' past pattern of conduct and a reasonable
interpretation of the situation. In this case, the employer knew
Haftbaradaran to be hypersensitive and "emotionally
labile". He was prone to tears and other emotional outbursts.
He had previously pulled a similar stunt – placing his
keys on the employer's desk and daring the employer to fire
him. Based on this past pattern and the employer's knowledge of
Haftbaradaran's dramatic tactics, the Court found that a
reasonable observer would not have viewed the outburst as an
Rather, the employer's follow-up email to Haftbaradaran, in
which it assumed the employment relationship had ended and left him
no room to negotiate, was found to be a termination. Despite an
employment relationship of only 23 months, the Court found the
employer liable for 8 months of pay in lieu of notice. This was
based largely on Haftbaradaran's difficulties in finding work
and his highly specific job field. What's more, the employer
was also liable for $2,000 worth of counselling sessions
Haftbaradaran needed to recover from his depression!
Taking Cues from the Manner and Timing of a
Balogun thought he deserved a raise. His employer disagreed.
Rather, Balogun was asked to address specific concerns with his
work. He responded that no one else was capable of evaluating his
work. When his boss asked Balogun what this meant for the future,
he replied, "I'm out of here." He left the meeting
and the workplace, and went on a scheduled vacation. The employer
concluded that his statement was a resignation and issued the
The Court found that the Balogun's conduct and statement did
not amount to a "clear and unequivocal" resignation, as
required by law. Given Balogun's impending vacation, the
employer had a duty to clarify his intent. It failed to do so.
Thus, it bore responsibility for terminating the employment
Impact for Employers
While the courts in British Columbia may be more "employee
friendly" than some others in Canada, these decisions serve to
emphasize how important it is for an employer anywhere in Canada to
clarify voluntary resignations with employees in all situations.
Even in scenarios where the resignation seems unambiguous, as in
Haftbaradaran, Canadian courts will consider things like
the parties' previous pattern of dealings and the timing of the
resignation. It is a prudent employment practice to always confirm
a voluntary resignation with the employee, preferably in writing,
before officially terminating the employment relationship.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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