Did he quit or was he fired?

Brayley v. Dobson Collision Centre Inc., 2004 CarswellNB 393 (N.B. Labour & Employment Bd.).

Richard Brayley worked as an auto body technician from 1996 to 2003. His supervisor throughout, who owned or co-owned the company for much of that time, was James Dobson who, in testimony before the New Brunswick Labour and Employment Board, described Brayley as “100 per cent reliable and honest” and “almost like family.”

On Sept. 30, 2003, the men had a dispute over whether Brayley was entitled to six per cent vacation pay rather than four per cent. This ended with Dobson telling Brayley to “get out” and later “get out now.” Brayley asked if he could stay to the end of the week, to which Dobson said he could do whatever he wanted as Dobson was going home.

On his way out Brayley told the office manager that if Dobson wanted him he knew where to get hold of him. The next day Brayley returned to the office to pick up his tools and was told by the office manager he had not been fired. Brayley said he had been, and indicated that if Dobson wanted him back to work all it would take was a phone call.

Dobson and Brayley met briefly days later when Brayley returned his uniform. Dobson did not ask Brayley to return to work and Brayley did not ask if he could return. Brayley had found full-time work at another auto body shop but had requested he not be required to start for another week on the hope Dobson would call him back.

In ruling on Brayley’s appeal of an initial rejection of his claim the board noted the law requires clear and unequivocal evidence of a resignation. Even in a case where an employee had said “I quit” to his supervisor, had taken his two weeks’ vacation and upon resuming work had told the supervisor he was looking for other work, the employee was determined not to have quit. The board held that ultimately the test for voluntary resignation, as determined in Assouline v. Ogivar Inc., is: “Given all the surrounding circumstances would a reasonable man have understood by the (employee’s) statement that he had just resigned?”

This case, ruled the board, was “a very unfortunate situation… that seems to have been blown out of all proportion.” The board urged the men to consider a reconciliation but, since it could not force that solution on the parties, ruled there was no genuine intent on the part of Brayley to resign.

He had never considered the possibility of quitting his job over the vacation pay issue. Dobson had admitted Brayley had asked if he could “stay to the end of the week.” This confirms Brayley had not resigned, the board ruled, and it also confirms that the actions of Dobson were tantamount to termination.

Dobson could have retained Brayley as an employee by making a single phone call. That he did not is because he had made up his mind to terminate Brayley and wasn’t prepared to reconsider this decision.

Brayley was entitled to pay in lieu of notice, said the board, and he was awarded $2,829 for four weeks plus vacation pay.

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