Even if an employee says ‘I quit,’ the surrounding circumstances must be considered before accepting a resignation
The courts have made it very clear: an employee’s resignation must be unequivocal, taking into account all of the circumstances in which it was delivered. Otherwise, the termination is wrongful dismissal which will attract severance in lieu of notice.
The Ontario Superior Court of Justice has affirmed recent case law in British Columbia and held that if an employer wishes to rely on an employee’s resignation, it must be clear and without doubt.
In Moreno v. Comfact Corp., the court to a single question: was he fired or did he quit? Even though Juan Moreno had provided his employer, with a resignation letter, the parties decided to work out their issues and Moreno withdrew his resignation. Although the parties agreed they would continue on as though nothing had occurred, the employer still had the resignation letter, which he attempted to use at a later date to allege he was accepting Moreno’s resignation. Based on the evidence, the court found Moreno did not quit but rather he was fired.
In Bru v. AGM Enterprises Inc., the British Columbia Supreme Court found Joey Bru’s “resignation” was not clear enough to be considered a resignation and therefore AGM had wrongfully dismissed her. Bru was a deli clerk at the Mediterranean Market in Kelowna, B.C. After two and a half years of employment at the market, Bru was called in by her manager to discuss a conflict that had developed between her and another deli clerk. Bru became upset during the meeting and requested permission to go home for an hour. Within the hour, Bru called the manager and told him she was not well enough to return to work for the rest of the day. Bru’s next scheduled date to work was two days later on Nov. 12, 2007. However, she didn’t show up and the market didn’t hear from her until Nov. 13. Despite contradictory testimony regarding the Nov. 13 telephone conversation, the court found the supervisor heard correctly that Bru had said, “I can’t take it any longer and I am quitting.”
However, this did not mean Bru made a clear and unequivocal resignation of her position, said the court. The supervisor did not ask any follow-up questions to ascertain if Bru truly meant what she said or was voicing frustration.
On Nov. 14, Bru called her manager and asked if she still had a job. The manager said Bru had quit and been replaced. Bru denied quitting. On Nov. 19, 2007, Bru received her last paycheque and record of employment. The court held that when it was clear there was a misunderstanding, the employer could not rely on Bru’s previous comments and ignore the surrounding circumstances, including her plea she had not quit.
Where the fact of a resignation is in doubt, an objective test is applied. Given all the circumstances, would a reasonable person have understood the employee’s statement that he had resigned? This test is affirmed in the B.C. cases Cox v. Victoria Plywood Co-Operative Assn. and Ata v. Carter Pontiac Buick Ltd. and by the Ontario Superior Court of Justice in Gebreselassie v. VCR Active Media Ltd.
“A valid and enforceable resignation must be clear and unequivocal – to be clear and unequivocal, the resignation must objectively reflect an intention to resign, or conduct evidencing such an intention,” said the Ontario court.
Bru and supporting cases stand for the proposition that an employer, in circumstances where the employee may be under stress, should raise questions regarding the employee’s emotional state and true intentions when receiving or attempting to rely on a resignation statement. The court in Bru, found “pivotal findings for the case did not depend on perfect accuracy or consistency on the part of Ms. Bru, or any other witness, but on an objective assessment and weighing of all the evidence and preponderances of probability on each issue.”
Ultimately, the court in Bru, found the employer’s conduct might be characterized as careless disregard rather than malicious. In contractual terms, it was a breach of a term in reasonable contemplation by the parties to fairly regard one another’s interests and the employer would act fairly and reasonably and be mindful of the employee’s vulnerability and obvious emotional distress in those circumstances.
When resignation statements are made in the heat of the moment or if the employee is mentally or physically distressed, the surrounding circumstances must be considered before accepting the resignation.
For more information see:
•Moreno v. Comfact Corp., 2009 CarswellOnt 3975 (Ont. S.C.J.).
•Bru v. AGM Enterprises Inc., 2008 CarswellBC 2635 (B.C. S.C.).
•Cox v. Victoria Plywood Co-Operative Assn., 1993 CarswellBC 1197 (B.C. S.C.).
•Ata v. Carter Pontiac Buick Ltd., 2002 CarswellBC 842 (B.C. S.C.).
•Gebreselassie v. VCR Active Media Ltd., 2007 CarswellOnt 6929 (Ont. S.C.J.).
