BC Court of Appeal upholds arbitrator's dismissal of constructive dismissal claim
The British Columbia Court of Appeal has dismissed a worker’s appeal disputing an arbitrator’s finding that he wasn’t constructively dismissed by a self-imposed layoff.
The worker was a forest technologist who became employed by Timberland Consultants, a resource management company based in Nelson, BC, after the company acquired the business for which the worker was working in 2001. The worker had been employed by the earlier business in 1992 and had no written employment contract.
The worker’s main duties involved managing Total Chance Planning (TCP) contracts administered by a government body in the Kootenay Lake, Rocky Mountain, Boundary, and Arrow regions of BC. The work involved with TCP contracts took place during the “field season” when field work could be conducted. The “off-season” started when snow arrived and ran until early spring, when field work was halted. During the off-season, work at Timberland consisted mainly of office work.
According to the worker, he engaged in office work through the off-season until the next field season began. However, in December 2014, December 2016, November 2017, December 2018, and March 2020, the worker chose to take time off. In each case, Timberland issued a record of employment (ROE) indicating “shortage of work/end of contract or season.”
Worker stopped working
During the 2020 field season, he felt that assignments were being diverted from him and he was removed from the management of the Kootenay Lake region for the first time in 15 years. On Oct. 15, before the end of the field season, a development project he was working on was cancelled, so he requested an ROE on Oct. 27 because the last TCP project had been cancelled and he hadn’t received any new assignments. Timberland provided an ROE listing the reason for its issuance as “shortage of work or end of contract or season,” similar to previous years.
In March and April 2021, the worker performed consulting work with another company in preparing a bid on a contract that Timberland had also bid on.
There was no communication between them until May, when Timberland inquired of the worker as to his plans, as it was aware of the worker’s work with the other company. It advised that the TCP contract wasn’t being renewed but it was willing to discuss other employment options. According to the worker, he asked for details and said that “To be clear, I have not resigned,” but Timberland didn’t respond.
The worker made a constructive dismissal claim against Timberland, arguing that he had been laid off and, after 13 weeks elapsed, he was deemed to have been terminated under the BC Employment Standards Act (ESA) and was entitled to both statutory and common law damages. Under the ESA, a temporary layoff was defined as “a layoff of up to 13 weeks in any period of 20 consecutive weeks” and termination of employment “includes a layoff other than a temporary layoff.”
Worker initiated layoff: arbitrator
The arbitrator determined that the layoff was initiated by the worker and was consistent with what had happened several times in previous off-seasons. The arbitrator also found that, had the worker requested work outside of the TCP contracts, Timberland likely would have provided some. However, the worker didn’t request any work and the layoff wasn’t initiated by Timberland, so it didn’t fall within the layoff provisions of the ESA, said the arbitrator.
In addition, the arbitrator found that the worker’s consulting work with another company with whom Timberland competed for a bid was “dishonest and disloyal,” particularly since the worker considered himself still an employee of Timberland. Working for the other company would likely be grounds for dismissal, the arbitrator said in dismissing the worker’s complaint.
The worker appealed, arguing that he was laid off in October 2020, which should have triggered the deemed termination provisions under the ESA. He contended that the arbitrator incorrectly distinguished between an employer-initiated layoff and an employee-initiated layoff and concluded that the provisions of the ESA didn’t apply to the latter scenario.
The Court of Appeal acknowledged that while the language used by the arbitrator could have been clearer, it was evident that the arbitrator didn’t draw a principled distinction between employer- and employee-initiated layoffs as alleged by the worker. Instead, the arbitrator’s decision was driven primarily by factual determinations, the appeal court said.
Termination or resignation
The court noted that “layoff” isn’t defined in the ESA, but the plain dictionary meaning was “an occasion when a company stops employing someone, sometimes temporarily, because the company does not have enough money or enough work.” In addition, the issue wasn’t whether the layoff was initiated by Timberland or the worker, but rather whether the worker was terminated or he resigned, said the court.
The court agreed with the arbitrator’s findings that there was work for the worker to perform in the office season and the worker chose to take time off, which “was consistent with what had occurred” in previous years. In addition, the worker performing work for a competitor when he hadn’t been terminated by Timberland was, at a minimum, a repudiation of his employment contract, the court said.
The majority of the Court of Appeal upheld the arbitrator’s dismissal of the worker’s claim, finding that the layoff was initiated by the worker and that he was not entitled to claim a deemed termination under the ESA.
