'This is not… your typical arm's-length employer and employee – these are family members'
An employee of a family business owned by his father clearly quit his job by not showing any regret or coming to work for a day after saying he was leaving, the Nova Scotia Labour Board has ruled.
It’s an example of where an employee’s statements and actions established the necessary subjective and objective elements of the test to determine if a worker resigns from their employment, says James Green, an employment and labour lawyer at Cox and Palmer in Halifax.
“The board was able to infer by the various statements used by the employee referring to the end of the relationship and a lot of derogatory terminology,” says Green. “The board was satisfied there was a clear subjective intention by this employee to resign, and the objective circumstances would indicate that the employee is carrying out that intention.”
Partington Sales is a plumbing wholesale company in Dartmouth, NS. The worker, who was the owner’s son, worked as vice-president of sales for Partington and was with the company for about a decade.
Testy email exchange
On Sept. 29, 2021, the owner sent an email to another employee about an account and CC’d the worker. A few hours later, the worker emailed the owner asking him to not copy him on anything that the other employee said, as he didn’t “give a s--- about what she has to say… I will have nothing to do with her.” He also said that he was “about three words away from looking for a new job with another agency.”
The owner replied that the worker should “get that chip off your shoulder.”
The worker quickly responded with another email saying that the other employee had caused him aggravation with no apology, and called her a vulgar slur. The owner told him not to use that language, and the worker emailed that he “had enough of this abuse, find someone else to give the business to” and that he was selling his house and moving away.
A few minutes later, the worker sent another email saying that he would be contacting all the sales managers and letting them know he was resigning.
A sawmill’s agreement to allow workers to leave for new employment before it closed didn’t entitle those workers to severance if they quit, an arbitrator found.
Employer accepted resignation
Some more testy email exchanges with derogatory language followed, with the owner saying that he accepted the worker’s resignation.
The worker said that his father wasn’t taking responsibility and he denied saying that he was resigning, adding that Partington would have to provide a severance package as there were documents stating that he was to inherit the company.
The owner asserted that the worker “resigned and disowned us” and the company would not provide any severance. On Sept. 30, the worker emailed that his father had “better lawyer up” and things would “get ugly.”
The worker filed a complaint under the Nova Scotia Labour Standards Code alleging that he had been terminated without cause or was constructively dismissed by Partington Sales. He said that he didn’t formally resign and it was a forced resignation.
The worker argued that his employment environment had degraded to the point where it was “no longer safe or feasible” to remain with the company. He alleged that working with his brother was a threat to his physical and mental health, as they had had a physical fight in March 2020, although his brother didn’t become employed by Partington until August 2021.
Ontario court decisions have established that an employee’s resignation must be clear, say employment lawyers.
Resignation, not dismissal
The director of labour standards found that the worker resigned from his employment, so he wasn’t entitled to pay in lieu of notice. The worker appealed.
The labour board noted that there was a two-part test for resignation – an employee must make a statement or exhibit behaviour that clearly indicates to the employer an intention to quit, and the employee must take action in a way that shows that they are carrying out the stated intention to quit.
The board found that when the worker stated in emails that “I’m done,” to find someone else to give the business to, that he was moving away, and that he was letting others know that he was resigning, met the first part of the test.
The board also noted that, although the worker later said that he didn’t say that he was resigning, he didn’t take any action to repair the relationship or return to work. It was almost a full day between the worker’s first resignation threat and further exchanges with the owner and at no time did the worker express regret or a desire to continue working, said the board.
“There was a mention by the employee that he was attempting to retract the resignation, but in that same message he requested a severance package,” says Green. “You don't undermine the attempt to retract [the resignation] by looking for the severance package.”
A worker who declared that he quit and wrote a letter of resignation did not show an objective intention to resign when he didn’t follow through, a BC arbitrator ruled.
Time to calm down
The time that passed after the worker’s first statement he wanted to resign played a part in determining his intention, adds Green.
“This employee had plenty of time to calm down and retract the resignation before it was accepted,” he says. “After those 23 hours, [Partington Sales] finally confirmed their acceptance of the resignation, and only then did the employee try and retract.”
One concern for the employer could have been uncertainty over the timing of the resignation, according to Green.
“There was talk by the [worker] that showed an intention to resign and the board certainly found that, but it wasn't clear when that resignation was going to occur,” he says. “One thing the employer could have done that could potentially have exposed [it to liability] was some uncertainty around the date the resignation was to take effect.”
The board also found that the worker’s resignation was not forced. The worker did not provide any evidence of an unsafe workplace other than emails about the fight 17 months before his brother joined Partington sales. This suggested a family relationship that was volatile, but not a workplace that was unsafe to the point where the worker could no longer work there, said the board, adding that the worker played an active role in the aggressive interactions with his father and brother. As a result, there was no evidence of constructive dismissal, the board said.
The board noted that Partington Sales did not have just cause to dismiss the worker, but this did not entitle the worker to damages because he resigned from his employment. The complaint was dismissed.
A worker who said that she was going to quit but continued to work and went on medical leave did not resign, according to the Ontario Labour Relations Board.
Family dynamics can be factor
The fact that the parties involved were family members could affect how subjective intention to resign is determined, says Green.
“This is not what I'll call your typical arm's-length employer and employee - these are family members and I have no doubt that it would influence a board or court very much,” he says. “When looking at these facts and trying to impute subjective intentions, the fact is that this is a family and there are other issues that are coming into play other than just the work context.”
Green points to the fact that the board found that there would have been no just cause for dismissal, despite the worker’s insolent emails to the owner.
“I thought that was this was as clear-cut a case of just cause for termination as you could get, [but] the board found there's no just cause because these are family members and this is how they talk to one another,” he says. “But that same recognition of the impact of the family relationships, we don't see that in the resignation analysis - this is the way these parties have chosen to speak to one another.”
Heat of the moment
Whether a family business or not, an employer faced with an emotional employee who expresses an intention to resign needs to allow a reasonable amount of time to pass before concluding that the resignation is final and concrete, according to Green.
“Avoid jumping the gun when the employee is in an emotional state – a court or board may look at that and say that their resignation was not voluntary or subjectively ended, simply because they were in an emotional state,” he says. “Confirming the date of resignation and accepting the resignation on those terms are important, particularly if you have an employee who tries to revoke their resignation.”
