Canada: When Is A "Resignation" Not A Resignation?

St. Hubertus Estate Winery Ltd. is a small winery in the Okanagan wine region of British Columbia. It is owned and operated by two brothers, Andy and Leo Gebert.

In April 2008, the Gebert brothers hired Hooman Haftbaradaran to work as a cellar hand. Mr. Haftbaradaran impressed the Gebert brothers with his vigour and passion for wine-making. Accordingly, he was given generous raises and ultimately promoted to "winemaker" in the summer of 2008. Mr. Haftbaradaran continued to impress the Gebert brothers and he was successful in this new role.

In mid-March 2010, Mr. Haftbaradaran took a vacation to Germany. While there he attended a wine making show and convention. He sent an enthusiastic email to Leo Gebert describing some of the new things he had seen and learned. He also arranged to ship six bottles of wine from Germany back to St. Hubertus for sampling.

Mr. Haftbaradaran did not receive a return email from Leo Gebert. Moreover, when he returned from his vacation, nobody at St. Hubertus showed much interest in Mr. Haftbaradaran's experiences. Mr. Haftbaradaran felt stung and hurt by this apparent lack of interest or appreciation.

On April 7, 2010, Andy Gebert asked Mr. Haftbaradaran to provide four recommendations for St. Hubertus wines to be entered into an upcoming wine competition. Mr. Haftbaradaran had previously provided six recommendations, but Mr. Gebert wanted him to narrow the recommendations down to four. Mr. Haftbaradaran took offence to this request and an emotional confrontation ensued in Mr. Gebert's office.

An agitated Mr. Haftbaradaran proceeded to tell Mr. Gebert that he was unhappy about being asked again about wines for the competition. He went on to tell Mr. Gebert how hard he worked for St. Hubertus and how successful he had been, but that, despite all that, he was under-valued and underappreciated. Ultimately, Mr. Haftbaradaran broke down into tears at which point Mr. Gebert tried to reassure him. When Mr. Haftbaradaran refused to accept Mr. Gebert's reassurances, Mr. Gebert lost patience and told him that, if he was so unhappy, he should go and look for another job. In the course of this heated discussion Mr. Gebert used some strong language toward Mr. Haftbaradaran.

On hearing this, Mr. Haftbaradaran laid his cellar keys on Mr. Gebert's desk and invited Mr. Gebert to fire him. Mr. Gebert told Mr. Haftbaradaran to get out of his office at which time Mr. Haftbaradaran reached out to shake Mr. Gebert's hand and, with a smile on his face, said words to the effect of "good luck making wine." Mr. Haftbaradaran then gathered his personal effects and left the St. Hubertus property.

Later that afternoon Andy Gebert sent Mr. Haftbaradaran the following email message:

"Hi Hooman

I just like to recap this morning's discussion in regards of yoru [sic] position at our winery.

As discussed we have to plan your departure from our company in order to clean up all the loose ends.

We hope this should be possible within the next 4 weeks.

Please let us know if this will work for you or if you will leave us before this time?

Failure to respond by April 9, 2010 12:00 noon will let us believe that you have already resigned your position at our winery. "

Mr. Haftbaradaran retained legal counsel who responded on his behalf, advising that it was Mr. Haftbaradaran's view that St. Hubertus had terminated his employment and that he would not be returning to work.

Mr. Haftbaradaran sued St. Hubertus for wrongful dismissal, maintaining, among other things, that St. Hubertus had terminated his employment. At trial it was St. Hubertus' position that Mr. Haftbaradaran had, by his conduct, resigned from his employment.

In considering whether Mr. Haftbaradaran had resigned, the trial judge stated the test as follows:

"In order for an employee's resignation to be effective, the resignation must meet the objective test of the disinterested and reasonable observer. Would such an observer conclude from the employee's words and actions that the employee had irrevocably quit his or her job? Would that observer conclude that the employer had accepted the resignation as an end to their relationship."

The trial judge found that the exchange between Haftbaradaran and Gebert was equivocal. He found that Haftbaradaran's action in laying his keys on the desk and saying "good luck making wine" and leaving the property was poor judgment on Mr. Haftbaradaran's part, but did not amount to an unequivocal expression of resignation. The trial judge surmised that these actions and statements were simply a strategy on Mr. Haftbaradaran's part to get the Gebert brothers to praise him and defer to his opinion, which was consistent with his behaviour in the past.

On the other hand, the trial judge found that Andy Gebert's actions also did not amount to an unequivocal expression of termination of Mr. Haftbaradaran's employment. Moreover, the trial judge found that Gebert's use of strong language and his suggestion that Mr. Haftbaradaran seek employment elsewhere did not amount to a constructive dismissal of Mr. Haftbaradaran (which was claimed in the alternative).

Accordingly, the trial judge found that Mr. Haftbaradaran had not resigned, nor had he been dismissed, in the course of the meeting that took place on April 7, 2010. However, the trial judge went on to find that the email message which was sent to Mr. Haftbaradaran later that day spoke unequivocally of the relationship coming to an end and made no offer or room for reconciliation. Accordingly, the trial judge found that, in sending that email, St. Hubertus terminated Mr. Haftbaradaran's employment, without cause. Mr. Haftbaradaran was awarded eight months pay in lieu of notice.

In his reasons, the trial judge implies that St. Hubertus could have avoided its fate had it acknowledged the ambiguity of the discussion between Haftbaradaran and Gebert, sought clarification of Mr. Haftbaradaran's position and/or invited Mr. Haftbaradaran to come back to work and work out his differences.

Clearly, Andy Gebert's email sent the afternoon of April 7, 2010 was ill-advised. First and foremost, in these situations employers should avoid the urge to fire off written communications "in the heat of the moment" in the hope of crystallizing an ambiguous event. As the trial judge suggested, a better strategy would have been to seek written clarification of Mr. Haftbaradaran's position, make it clear on the record that his employment had not been terminated and to offer an opportunity to resolve any outstanding disputes. If, after that, Mr. Haftbaradaran continued to refuse to report to work, St. Hubertus would have been in a much stronger position at trial.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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