'Even if there's a resignation, it doesn’t mean that there's not an allegation coming down the road'
“A lot of people are just going to shake the bush for money at the end after [they resign from employment], so be prepared. You have to realize that even if there's a resignation, it doesn't mean that there's not an allegation coming down the road,” says Lorenzo Lisi, partner at Aird & Berlis in Toronto and leader of the firm’s workplace law group.
“One of the legal principles that I think has always frustrated employers has been that when somebody resigns and then they take it back, there is a very generous approach to allowing an employee to resile from their resignation,” he says. “If the employer takes the position, despite that rescission, that they're terminated, then you're stuck with a wrongful dismissal case.”
Lisi’s caution follows a recent Ontario Superior Court of Justice decision in which the court upheld an employee’s resignation after the employee argued that he resigned under duress.
Company changes benefits
Ontario Potato Distribution (OPD) is a company that farms, packs, and distributes potatoes. It operates a warehouse facility in Cambridge, Ont.
OPD hired the worker in September 2008 to be lumper – a manual labour position. He usually worked an overnight shift.
In mid-April 2020, the worker discovered that OPD had reduced his benefits. He had been put on a methadone program for medical treatment, but then his benefits were shifted to a lesser class that forced him to pay for his medication. He sent angry and threatening texts to the day shift supervisor that his benefits had been taken away, but the day shift supervisor responded that she didn’t work in the office and didn’t know what was going on. The worker said that she had been messing with him to “the point of harassment.”
A few days later, OPD’s human resources manager informed the worker that the company would reinstate him to the top class of benefits so he could submit his drug claims for reimbursement. Normally, that level of benefits wasn’t provided to lumpers, but OPD would keep him at the top level until his methadone treatment was completed.
Abrupt resignation
On April 28, the worker’s shift was scheduled to run from 11:30 p.m. to 7:30 a.m. Around 3 a.m., the worker’s supervisor sent him on a smoke break, as was regular practice. About 15 minutes later, the worker returned and told the supervisor that he “could not do it anymore.” He then asked for a resignation form.
The supervisor found a resignation form and witnessed the worker sign it. The worker then placed his security card on top of the form and left without any further explanation.
According to the worker’s evidence, the supervisor had told him earlier that there was someone outside who wanted to talk to him and directed him to the parking lot. The worker walked to a vehicle in the back of the parking lot with its headlights on, where he found a “very tall man in a trench coat” outside the vehicle putting on leather gloves.
The worker claimed that the man said he had seen the texts sent to the day shift supervisor and that “it stops now and when your program is over, so are your benefits.” When the worker asked who he was, the main pointed his fingers in his face “like a gun” and said, “We never had this f---ing conversation,” according to the worker.
The worker said he felt threatened and that it wasn’t safe to work at the OPD facility anymore. He claimed that the supervisor told him to turn in his security card and sign the resignation form, which he said he did under “stress and duress.”
Read more: An employee’s actions and subjective intention are key to determining if a resignation is binding, says an employment lawyer.
Later that day, the worker texted the HR manager, referring to the parking lot incident and asking for a “buyout package.”
The worker filed a constructive dismissal complaint claiming 12 months’ pay in lieu of notice plus aggravated damages, while OPD said he voluntarily resigned his employment in the middle of a shift. The supervisor denied telling the worker about anyone in the parking lot or that the worker mentioned it when he returned from the smoke break.
Story lacked credibility
The court had difficulty believing the worker’s story about the incident in the parking lot. First of all, one week earlier, the worker had been told that his benefits were being restored, so it was no longer an issue. It didn’t make sense that someone would want to speak to him about the texts to the day shift supervisor and his benefits when the matter had been resolved, said the court.
In addition, the worker’s story didn’t hold up when compared with the accounts of his supervisor and the day shift supervisor. The former’s version of events was consistent with normal practice – he always sent the worker for a smoke break mid-shift and he had no reason to fabricate a different version of events. The day shift supervisor had also let things go and believed it was resolved, even though the worker had sent her threatening texts. She testified that she didn’t want to escalate the conflict.
Read more: A clear and unequivocal resignation followed by the employer’s acceptance can be enough to form a binding agreement, according to a couple of employment lawyers.
Given that there was no reason to believe that the parking lot incident occurred, there was no evidence to support that the worker resigned under duress, the court found. The supervisor reported that there were no signs of duress when the worker came back inside and signed the resignation form, and there was no “spontaneous outburst in highly charged emotional circumstances,” said the court.
“[The court] came to the conclusion that in order for it to even find that there was any duress, it needed to believe that this event occurred,” says Lisi. “Even with the law being that the resignation has to be clear and unequivocal and reflect an intention to resign, the fact that there was no evidence that [the worker] was under any duress, the court couldn't find otherwise.”
The court added that the worker’s conduct afterwards – emailing the HR manager asking for a buy-out – was consistent with a belief that he had resigned. At no point did the worker try to rescind his resignation, said the court in ruling that the resignation was clear and unequivocal.
Employers should note that reliable documentation of an employee’s resignation can go a long way to ensuring that it holds up, says Lisi.
“If somebody resigns, then follow up in writing. [OPD] had a good process here – they had the form, they got it signed,” he says. “So that's very important, follow up and make sure that you've got the resignation in writing.”
See Miller v. Ontario Potato Distribution Inc., 2022 ONSC 1490.
