BC tribunal upholds finding that worker intended to quit

A worker who stormed out of his workplace, asked for his last cheque, and didn’t respond to queries from the employer quit his job and wasn’t dismissed, the British Columbia Employment Standards Tribunal has ruled.

Cloverdale Fuel Limited operates a fuel delivery trucking business in Langley BC, employing the worker as a delivery truck driver.

On March 3, 2020, the worker was injured at work and he was unable to work. He applied for workers compensation benefits to cover his time off.

Cloverdale offered the worker modified duties to allow him to mitigate his wage loss while he recovered, but it required confirmation from the worker’s doctor that he would be fit to return to work. The company provided the worker with a return-to-work form to be completed by his doctor.

The worker said that he would return to work once his doctor approved it, although he didn’t return a completed form. On March 13, the worker’s doctor certified that the worker could return to work without restrictions. The worker also informed Cloverdale that he would provide the completed return-to-work form when he reported for his next shift.

A federally regulated employer was entitled to accept a worker’s verbal and written resignation, even if the employee changed his mind later, according to the Canadian Industrial Relations Board.

Worker believed he was fired

The worker attended work on March 16, but found his delivery truck locked. This was unusual, since he normally began work by inspecting and starting his truck before checking in at the office. The worker took this to mean that Cloverdale didn’t intend for him to work that day and he was going to be fired.

The worker went into the office and met with the manager and assistant manager. According to the worker, the manager confirmed that he was being fired, but the manager denied it. According to the manager and assistant manager, they asked for his return-to-work form and the working became agitated and stormed out while yelling profanities. The worker soon returned and threw the form on the form and left again.

Later that day, the worker sent a text message to the manager advising that they could “just stick my last cheque and paperwork in the mail.” The manager asked him if this meant that he was resigning from his employment, but the worker didn’t reply. The manager tried calling the worker, but the worker didn’t answer his phone.

The worker didn’t show up for his next two shifts, so on March 18, Cloverdale sent the worker a letter confirming what happened two day earlier and that it considered him to have resigned. The worker still didn’t respond, but on March 23 filed a complaint with the BC Employment Standards Branch claiming compensation for length of service under the province’s Employment Standards Act (ESA).

The worker alleged that he was fired because he refused to comply with Cloverdale’s repeated pressure to refrain from filing a workers compensation claim, which he said would be insurance fraud. He also said that he had no intention of resigning and he left the office on March 16 because he thought that he was being fired.

An agreement that allowed workers to leave before a plant’s closing date didn’t preclude their departures from being considered resignations, an arbitrator ruled.

Intention to quit

A delegate from the director of employment standards found that the worker’s text message requesting his last cheque and paperwork, along with his failure to respond to the manager’s queries about his intentions, showed that the worker intended to quit his job. In addition, the worker actions in leaving the worksite, failing to respond to a text message shortly thereafter, and not reporting for work were all “acts inconsistent with his continued employment,” the delegate said in dismissing the worker’s complaint.

The worker appealed to BC Employment Standards, but a member of the tribunal found that the delegate applied the correct legal test to determine if an employe quit and relied on the proper evidence. The worker he appealed again, this time to the full tribunal.

The tribunal found that the worker’s argument in his appeal were mostly “a repetition of the arguments which failed to persuade both the adjudicating delegate and the member on appeal.” However, the threshold test for reconsideration of a decision must be based on “questions of fact, law, principle, or procedure emerging from the appeal decision which are so important that a reconsideration of it is warranted,” said the tribunal.

The worker took issue with the appeal decision’s use of certain details and words that differed from his version – such as where he went to get the return-to-work form before he threw it on the office floor and whether he asked for his “last” pay or “final” pay – but the tribunal found that these were immaterial to the decision. Regardless of what wording the worker used in his text, it indicated an intention to resign, the tribunal said.

An employee did not form an intention to quit when he was still trying to get information from the employer in order to make such a decision, an adjudicator ruled.

No palpable or overriding errors

The tribunal noted that both the worker and Cloverdale had been invited to review the delegate’s report and had the opportunity to clarify any details. There was no indication that the delegate was unaware of any of the worker’s positions on the evidence or didn’t consider it, said the tribunal.

The tribunal found that the principal issue was whether the worker had resigned or was dismissed and the delegate and appeal member did not show any palpable or overriding errors in coming to the conclusion that the worker leaving work without permission and requesting his last cheque and paperwork, along with not responding to communication from Cloverdale, meant that he resigned from his employment.

The appeal was dismissed. See Thomas Reekie (Re), 2023 BCEST 42.