Termination versus dismissal

Did he quit or was he fired?


It seems like a simple question to answer: Did the employee resign or was he fired?

But case after case shows it can be a major bone of contention in wrongful dismissal lawsuits. An employee may verbally offer to resign in the heat of the moment, only to be stunned when the employer later presents him with a resignation letter to sign.

During an argument, an employer might tell a worker to take off — without literally meaning it — and the worker will leave thinking he’s been fired.

It’s a fine line and when the circumstances aren’t entirely clear, employers should be cautious because courts will often side with employees when the evidence isn’t abundantly clear that he resigned.

A recent case from the Alberta Court of Queen’s Bench provides an example of how courts will treat employers who accept resignations that weren’t really offered.

The case: Turner v. Westburne Electrical Inc.

Kevin Turner worked as an industrial sales representative at Westburne Electrical Inc. in Alberta from 1988 to 2001.

Although a successful salesman — pulling in income as high as $100,000 per year — he was not happy with everything at Westburne. He was disenchanted with the high rate of turnover, particularly among management.

On Feb. 22, 2001, he decided he’d had enough and drafted a letter of resignation. The letter stated he was going to look for other opportunities in the market but in truth he had another job offer. Turner handed the letter to Mr. Henderson, Westburne’s general manager. Henderson said he was not prepared to accept the resignation and asked him to reconsider.

After some negotiation Turner agreed to stay and was given a one-time $10,000 payment and a part-time assistant. But things turned sour again in September 2001 when Westburne hired Brian Ricker as its industrial sales manager. Ricker and Turner didn’t see eye-to-eye on many issues.

Ricker was upset that Turner missed — or was late — for internal sales meetings. Ricker wanted the sales staff to work as a team, and implemented a new sales tool that required co-operation and information exchange among the sales staff. Turner was not enamoured with the new system nor was he enthusiastic about sharing all the necessary information.

The problems came to a head in November 2001. Ricker was increasingly frustrated with Turner and the two met for breakfast to attempt to work through the problems. The relationship warmed briefly, but after two weeks Ricker was again unhappy with how Turner was behaving.

On Tuesday, Nov. 27, Bob Nelson — a Westburne employee and friend of Turner — suddenly died. Turner learned of the death on his way to work on the morning of Nov. 28. On Thursday Turner was asked by Nelson’s family to give a eulogy at the funeral. None of the Westburne managers that knew Nelson were available to deliver a eulogy, so the task was given to Turner, apparently with the blessing of Westburne’s management.

Turner had a busy weekend but met with some of Nelson’s friends to reminisce and collect material for the eulogy. He worked on it extensively, staying up until the early morning hours. On Monday morning, he was still not satisfied with the text. He brought the eulogy with him to work with the intention of polishing it up at the office. He was aware a weekly sales meeting was scheduled with Ricker that morning.

At this point, the evidence varies but the court accepted that Ricker was upset that Turner was missing the meeting to work on the eulogy.

Turner delivered the eulogy at the funeral later that day. On Dec. 4, the day after the funeral, Turner had a morning meeting scheduled with Ricker at 10 a.m. Again the evidence varies as to what happened next, but Turner was kept busy in the morning before the meeting working out a kink in a deal with one of his clients. Turner said he was on time for the 10 a.m. meeting but couldn’t find Ricker. Ricker claimed Turner was late.

Ricker went to the employee responsible for human resources and got an employee warning form. When Ricker and Turner met later in the boardroom the form was presented to Turner. Turner passed it back without reading it or signing it.

The form was dated Dec. 4 and describes the violation as “late for sales meeting in this case did not even show up.” The date of the violation on the form is Dec. 3, 2001 — the date when Turner missed the meeting to complete the eulogy.

Turner, angered by Ricker and stressed after a difficult weekend, told him twice that he had his verbal resignation and that if he wanted his resignation, he could have it at the end of the day.

Ricker claimed to have accepted the verbal resignation at that point, but the court disputed that notion.

“I do not believe that Mr. Ricker would have accepted a resignation, given in the heat of the moment from an obviously valuable, though perhaps troublesome, employee, without first consulting his superior, Mr. Henderson” said Justice C.S. Phillips in the decision.

During this time Henderson, Westburne’s general manager, was away on business. He found out about the resignation from Ricker via telephone, at which point he wanted to take immediate action to attempt to keep Turner with the company.

On Dec. 5 Ricker and Turner agreed to meet in the afternoon to discuss what was happening. The meeting lasted about three hours and only Ricker and Turner were present. Ricker claimed the subject of the resignation never came up. Turner said it did come up, and he repeatedly told Ricker he was withdrawing his resignation.

The court found Ricker did not make a good-faith effort to resolve the issues between them. He continued to press for the resignation but Turner had changed his mind and was no longer tendering it. But even though Turner was under the impression his resignation was off the table, Ricker was still working behind-the-scenes to accept it. The court said Ricker wasn’t upfront with Henderson, his superior, about the meeting and that Henderson was under the impression that Turner had not rescinded the resignation.

Turner continued to show up for work. On Dec. 7, at 4 p.m., he was called into the boardroom to attend a meeting with Ricker and Henderson. Ricker asked Turner to sign a resignation letter. He again refused.

Henderson stepped in and said the whole thing needed to end, and asked Turner to hand in his key, turn in his company credit card and leave the building.

Turner filed suit for wrongful dismissal. The main question before the court was whether he resigned or was fired. The onus is on the employee to prove dismissal as opposed to resignation.

The court preferred Turner’s version of the events, that he rescinded his verbal resignation before the company accepted it. The fact the employer pushed hard for a written resignation before telling him to leave offered further proof the company itself was unsure of Turner’s intentions, the court ruled.

“There would be no reason why (Westburne) would ask for Mr. Turner’s written resignation on Dec. 7, 2001, if it was certain that he had effectively resigned on Dec. 4, 2001,” said Justice Phillips.

The court awarded him 10 months’ notice.

For more information see:

Turner v. Westburne Electrical Inc., 2004 CarswellAlta 1074 (Alta. Q.B.)

Judges only find resignation in clear-cut cases

There is often a dispute as to whether an employee has effectively resigned or been terminated. Often this will occur when the employee has “drawn the line in the sand” over an issue.

As a general matter judges are reluctant to find a resignation in other than clear-cut cases given the drastic consequences that the employee has lost employment and has no entitlement to compensation.

In Pauloski v. Nascor Inc., 2002 CarswellAlta 262, 16 C.C.E.L. (3d) 202 (Alta. Q.B.) the Alberta Court of Queen’s Bench reviewed some of the case law as follows:

•The employee must prove dismissal as opposed to resignation on a balance of probabilities. Osachoff v. Interpac Packaging Systems Inc., 1992 CarswellBC 889, 44 C.C.E.L. 156 (B.C. S.C.)

•As to dismissal, while specific and unequivocal notice of dismissal is required, notice is specific and unequivocal if the employer’s words or conduct would lead a reasonable person in the employee’s position to understand that he has been dismissed. Kalaman v. Singer Valve Co., 1997 CarswellBC 1459, 31 C.C.E.L. (2d) 1 (B.C. C.A.)

•A resignation is effected if, in all the circumstances, the employee’s words or conduct would lead a reasonable person in the employer’s position to understand that the employee had resigned. Assouline v. Ogivar Inc., 1991 CarswellBC 873, 39 C.C.E.L. 100 (B.C. S.C.)

•Deciding between dismissal and resignation requires an objective assessment of “the actions and statements of the parties within the context of the specific workplace involved, as well as the particular industry and all relevant surrounding circumstances.” Pratt v. Arakis Energy Corp., 1999 CarswellAlta 700 (Alta. Q.B.)

Source: Excerpted from Employment Law Manual: Wrongful dismissal, human rights and employment standards by John R. Sproat. Published by Carswell. For more information visit www.carswell.com.

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