'When emotions get high, it can be difficult to communicate effectively': lawyer
The Manitoba Labour Board has dismissed an order to pay a worker wages in lieu of notice because the worker actually resigned from her employment.
The worker was employed as an accounting technologist/bookkeeper since March 2019 for Sharpe & Company Chartered Professional Accountant, an accounting firm in Brandon, Man. Sharpe was a small, family-run business, and all of the employees in the office were family members with the exception of the worker and one other employee.
The worker told the owners in January 2024 that she was pregnant and they were supportive, allowing her to come to work late when she had medical appointments first thing in the morning and then make up the time by working through her lunch hour.
On April 17, the receptionist – who was the daughter of the two owners - told the worker that she had a sore throat and she wanted to go to a walk-in clinic. The receptionist also said that she felt it was unfair that the worker had to work through lunch to make up time for medical appointments and asked if she wanted her to raise the issue with her parents. The worker declined, saying that it was near the end of tax season and she “didn’t want to rock the boat.”
The receptionist spoke with her mother when she arrived at the office and later told the worker that she had been approved to go to a walk-in clinic. The worker asked if she would have to make up the time over lunch, to which the receptionist replied no.
Workplace altercation
When the worker took her break, she made a joking comment to the receptionist not having to make up the time on her lunch. When she returned, the receptionist was in her mother’s office. When she came out, the worker apologized for the comment and the receptionist replied that it was a “bitchy thing to say.” The worker returned to her desk and continued working.
However, the co-owner came out of her office and said that she didn’t appreciate the comment the worker made to her daughter. The worker complained about how she was treated and the co-owner said her daughter would come in on the weekend, which wasn’t allowed for employees. The worker dropped some papers on the ground and the co-owner stood over her as she picked them up, causing the worker to feel “boxed in.”
The worker wanted to leave the conversation and get some fresh air, so she picked up her coat and keys to go outside. The co-owner asked if the worker was leaving, the worker said yes, and the co-owner said if she was leaving then she shouldn’t come back.
The worker was shocked as she thought they could talk about it the next day, but the co-owner said to leave her office keys if she really was leaving. The worker took the keys off her key chain, handed them to the co-owner, and went home.
Later that day, the worker did some employment law research and received an email from the other co-owner, who was Sharpe’s director, with her last pay. The worker replied to the email asking for confirmation that she was terminated, as she loved her job and had only intended to leave the office “for a breather.” The director responded that she wasn’t entitled to pay in lieu of notice because she had quit.
Termination pay
On May 3, the worker filed a claim with the Employment Standards Branch (ESB) for wages in lieu of notice of dismissal. The ESB issued an order for Sharpe to pay the worker $4,972.28 for wages in lieu of notice and a $497.23 administrative fee.
Sharpe appealed the order, arguing that the worker had resigned and wasn’t entitled to pay in lieu of notice. Sharpe’s director argued that the worker had left the workplace abruptly during the peak of tax season, the busiest time for an accounting business. He said that he overheard the worker expressing her displeasure at having to work through her lunch to make up for medical appointments, which “set her off” and caused her to leave the office abruptly. The worker walked out without explicitly stating an intention to quit, but she left her keys when prompted by the other co-owner, which he interpreted as a resignation.
The worker maintained that she had intended only to take a break following a stressful confrontation and had not intended to resign.
The board noted that establishing an employee’s resignation requires both an express statement or action by the employee demonstrating a subjective intention to quit and an objective assessment of whether a reasonable employer would consider that statement or action to be a clear expression of that intention. Often, statements made in the “heat of the moment” fail to meet that standard, the board said.
The board found that while the worker may have felt overwhelmed during the incident, her actions - leaving mid-shift and surrendering her keys without clear communication -objectively indicated an intention to resign. Although employers are sometimes expected to confirm resignations made in emotional circumstances, the worker’s failure to seek clarification or retract her actions supported the conclusion that she had resigned, said the board.
“They gave her a choice and she made that conscious choice - and I think it was important that it was only after the fact, when the worker had received her final pay and done some research, that she then alleged that she was terminated,” says Mark Alward, an employment lawyer at Taylor McCaffrey in Winnipeg. “She took a very clear action that the board found a reasonable employer would have looked at said, ‘This person is not coming back to work.’
Intention to resign
The board appeared to have placed a significant emphasis on the fact that when the worker was told to return her keys if she was leaving, she turned around, walked back, and gave her keys back, says Alward.
“In my mind, if the worker hadn’t done that, but instead just walked out and then come back the next day, I think things might have been different,” he says. “To me, that was seen as the point she took a concrete action to make it clear that her intention is that she’s resigning.”
However, Sharpe might have saved some trouble if it had communicated more clearly on its end, according to Alward.
“It could have been more clear with its position that if the worker left, she should return her keys and we’ll take that as a resignation,” he says. “That's not always easy in situations like this, because people are busy and when emotions get high, it can be difficult to communicate effectively – and just because there's a disagreement and maybe an altercation with an employee, it doesn’t necessarily mean that there's a clear intention to resign, so you need to tread carefully.”
The board determined that the worker, by confirming that she was leaving the workplace in the middle of her shift, showed clearly that her intention was to resign. When she later contacted Sharpe seeking termination pay in an email intended to “prove [she] was terminated” rather than apologizing or explaining that she wanted to come back, these were actions that a reasonable employer would objectively interpret as the worker intending to resign, said the board.
Resignation from employment
The board determined that the worker resigned from her employment and overturned the order for Sharpe to pay her wages in lieu of notice.
Even though Sharpe was successful in its appeal, it still lost a good employee, so Alward has a caution for it and other family-run businesses.
“When you’re working with family, the mere perception that a family member is treated differently than other employees can lead to significant strife in the workplace,” he says. “All of this started because the worker perceived that the daughter of the owners was getting advantageous or preferential treatment.”
The disconnect between Sharpe and the worker led to a bad situation for everyone, regardless of who prevailed in the decision, according to Alward.
“First and foremost, Sharpe lost an employee that they said was a decent employee during an important time – [the owners] said they never would have fired her during the busy tax season because it put them into a difficult position,” he says. “On the other side, the worker said how much that she liked her job - so by people digging in their heels they ended a relationship that probably could have been salvaged.”
