Failing to respond to messages while off sick not a resignation

Employer viewed lack of response to inquiries as an abandonment of position

A British Columbia employee did not resign her job even though she didn’t respond to her employer’s inquiries after she stopped coming into work, the British Columbia Supreme Court has ruled.

Jennifer Koos, 40, worked for A & A Contract Customs Brokers in Surrey, B.C., for 10 years studying government policies and gathering regulations on imports and exports. On Dec. 14, 2007, Koos needed to run an errand at a customs office nearby and told her manager she would be gone for a few minutes. However, due to a delay at the customs office, she was gone for more than 30 minutes. When she returned to work, her manager loudly reprimanded her in front of her co-workers.

Upset and embarrassed, Koos reported the incident to her manager’s boss, who held a meeting between the parties. Though the supervisor thought things were resolved, she was told by another employee Koos had complained the meeting was one-sided. The supervisor spoke to Koos again and said she was disappointed and thought Koos had agreed the supervisor would be the one to talk to staff about the situation.

Koos felt this was another assault on her personally and began crying back at her desk. Her supervisor told her she should take the rest of the day off, so Koos called her boyfriend to pick her up. After they left, Koos asked her boyfriend to take her to the hospital, where she asked for medication to calm her down. She also asked the hospital to fax a note to A & A saying she needed to take two weeks off for anxiety.

The note was faxed, but Koos’ supervisor didn’t receive it right away. After Koos was away for a few days, the supervisor called her on Dec. 21, 2007, and left her multiple messages asking Koos how she was. Koos didn’t return the calls and didn’t contact A & A until the next week.

A & A sent Koos a letter on Dec. 31 saying the company was assuming she was abandoning her position since it hadn’t heard from her. The letter included a cheque for her vacation pay and said further severance amounts would be sent later. Koos responded to the letter, writing that she was off sick and she had sent a medical note. She said she was not terminating her employment. A & A didn’t accept Koos’ explanation and sent her a letter on Jan. 11 saying her actions constituted an abandonment of her position.

The court found Koos did not resign from her job. It said Koos had never said she was quitting her job and, though she purposely avoided responding to the telephone messages, A & A didn’t know that because it didn’t follow up.

“Not to answer the messages was, of course, irresponsible of (Koos). However, it remained (A & A’s) responsibility to clarify the facts with (her) before (the company) confirmed the termination of employment. (The supervisor’s) actions after receiving the answer from (Koos) suggest that the desire to be rid of (Koos) coloured her judgment of the facts, and induced her to act prematurely,” said the court.

The court found a reasonable person would not have viewed Koos’ actions as a resignation or abandonment of her job. It ruled she was entitled to 10 months’ notice for wrongful dismissal, given her length of service and specialization of her position. See Koos v. A & A Customs Brokers Ltd., 2009 CarswellBC 1107 (B.C. S.C.).

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