A refusal to work does not mean the worker quit

Cameron v. Sarlin Subway Ltd., 2004 CarswellNB 444 (N.B. Labour & Employment Bd.).

April Cameron worked for eight months for a Sarlin Subway franchise outlet in Hampton, N.B. She averaged 38 hours a week working various shifts and her duties included baking bread, making sandwiches, cleaning up and opening and closing the store.

On March 3, 2004, she was scheduled to work the 6 a.m. shift. Very early in the workday she saw a notice posted that there was going to be a mandatory staff meeting at 2 p.m. that day. The meeting was to instruct employees and also have them take a test on procedural operations in the store. She had not seen the notice before and had made an appointment for 2 p.m. that day some 50 kilometres away with a tax consultant to complete her income tax return.

Cameron asked her supervisor if she could take the test in the morning so she could keep her appointment. She was told it was a mandatory staff meeting and failure to attend would result in her dismissal.

At around 7:30 a.m. she left her hat and apron in the office area and left the store . The supervisor later that day filled out an "employee warning" stating Cameron was dismissed because she "was threatening to quit." This document was not provided to Cameron but she did, two weeks later, receive a record of employment that said she had been dismissed. There were no reasons given for the dismissal.

Cameron filed a grievance seeking two weeks pay in lieu of notice plus vacation pay. Sarlin Subway argued she had quit her job when she left the store and is therefore not entitled to pay in lieu of notice.

It is established in Canadian labour law, ruled the New Brunswick Labour and Employment Board, that to find an employee has quit both an intention and a manifestation of that intention to quit must be established.

Courts require clear and unequivocal evidence of a resignation. When a worker has absented herself from the workplace and is told that unless she reports by a certain date she will be taken to have resigned, normally it is considered a resignation if the worker remains absent. But a refusal to work does not necessarily amount to quitting: a worker may be absent for any number of reasons which could not be reasonably interpreted as manifesting an intention to quit.

In this case, ruled the board, there was no evidence that Cameron intended to resign. Sarlin Subway's own documents confirm the employer took disciplinary action based on Cameron's "threatening to quit." This disciplinary action was to dismiss her. In so doing the company failed to provide Cameron with a written notice outlining the reasons for her dismissal. This failed to comply with the provisions of the Employment Standards Act.

The board found Cameron was entitled to two weeks pay in lieu of notice plus vacation time.

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