A common argument that arises between employers and employees is one of “resignation vs dismissal”. This is especially true where there has been a dispute between the employee and a supervisor and the employee either leaves or is sent home. Often this is accompanied by the employee saying “I quit” in the heat of battle – in those cases, we know that the courts have allowed a “cooling off period”, where the employee can rescind their ostensible resignation without the employer being able to rely on such a statement as proof that the employment relationship is ended. But what about where the employer sends the employee home and they react after being sent home in some way?
A recent decision of the British Columbia Supreme Court addressed that very scenario. In Coutlee v. Apex Granite & Tile Inc. an employee was sent home after an altercation with a supervisor and never returned, leaving the Court to determine whether the employee quit his employment or was dismissed by the employer. In short, the employee was not willing to speak to the operations manager on site, at which point the operations manager determined he was a safety risk and sent him home. Accordingly, the Court asked the following questions:
- When the plaintiff was asked to leave the job site, was he suspended or terminated?
- If he was suspended, did the plaintiff subsequently resign by asking for his ROE?
- In the alternative, by ordering the plaintiff off the work site, did the defendant constructively dismiss the Plaintiff?
Suspension or Termination?
While the plaintiff took the position he was fired – even telling others on the jobsite that was the case as he left – the evidence at trial demonstrated that the operations manager clarified more than once to the plaintiff that he was suspended and not fired. The manager attempted to speak once more to the plaintiff prior to his leaving but the employee refused; no one from Apex followed up with the plaintiff until he contacted the company requesting his ROE.
In determining that the plaintiff's employment was not terminated on the day in question, the Court stated at paragraphs 161 and 162:
Beggs also states that the test for a dismissal, or termination, is purely objective: “A finding of dismissal must be based on an objective test: whether the acts of the employer, objectively viewed, amount to a dismissal” (at para. 36).
The dispute of August 17, 2018 ended with a clear denial at the time by Mr. Bordt that the plaintiff's employment had been terminated. In the absence of strong evidence to the contrary, this clear denial makes it difficult for the plaintiff to meet his burden to prove he was dismissed.
Did the Plaintiff Resign?
In its analysis of this question, the Court cited the legal proposition that “whether words or actions amount to a resignation must be determined contextually, with reference to the surrounding circumstances”. The context here involved multiple previous incidents of the plaintiff being sent home and/or suspended, during or after none of which did the plaintiff claim to have been fired but rather he would then speak to his supervisor or manager to “mend the relationship”. In that context, the Court determined it was reasonable for Apex to expect a similar occurrence in the situation in question. Further, after being sent home from the jobsite on this occasion, the plaintiff was issued a “Notice of Non-Compliance” which clearly stated that the plaintiff's suspension would end when “he made contact with management to resolve the issue and return to work.” It was reasonable, in the eyes of the Court, for Apex to expect the plaintiff to contact Apex to “clarify the status of his employment. The Court therefore stated at paragraph 175:
In the absence of such a clarification and due to his past dealings with Apex, a reasonable employer in Apex's position would see Mr. Coutlee's request for an ROE as a clear and unequivocal expression of his voluntary intent to resign.
We have written much in this space about constructive dismissal, and, while this decision specifically cited BC case law, regular readers will recognize the essential elements of the test:
- Was there a unilateral change by the employer that firstly, constituted a breach of the employment contract and secondly, substantially altered an essential term of the contract? This is an objective test: ; and
- Did the employer engage in a course of conduct that, when viewed in light of all the circumstances, would lead a reasonable person to conclude that the employer no longer intended to be bound by the terms of the contract?
Rejecting the plaintiff's various assertions and arguments, the Court found on the facts that the plaintiff did not even identify a term of the employment agreement, either express or implied, that was unilaterally changed by Apex so as to breach the contract. Accordingly, the court determined he was not constructively dismissed.
Although employers often bemoan the (perceived?) overly-sympathetic approach of the Courts to determining employment law issues, this decision demonstrates that establishing and following proper disciplinary procedures – and, importantly, properly documenting those procedures and steps taken with individual employees – can still protect employers.
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