Worker disputed performance review

Did worker resign or was she dismissed after she disagreed with her performance review?

This instalment of You Make the Call looks at an employee who left her job with the impression she was being terminated while the employer thought she was quitting. Susan Lelievre, 56, worked in Vancouver, B.C., for Commerce and Industry Insurance Company of Canada. She was promoted in 2001 to sales manager for the Western Region of Canada. In October 2003, her supervisors in Toronto became concerned with her performance and negative attitude. Lelievre’s direct supervisor met with her to discuss these concerns and told her she needed to be more professional.

Her supervisors didn’t see any improvement after the initial meeting and they gave her an oral warning in December 2003. On March 18, 2004, Lelievre was given a formal letter which stated “your performance will be closely monitored on an on-going basis. Failure to improve your performance to acceptable standards will result in further action being taken up to and including the termination of your employment.”

Lelievre strongly disagreed with the warning and sent an e-mail requesting her dismissal with “the appropriate generous severance.” The next day, she sent another e-mail which did not ask for dismissal but still disagreed with the evaluation. Her supervisors sent her a second letter which said the original message was meant to help her improve her performance and they always gave employees a chance for improvement. Lelievre was given a choice to either accept the performance review by March 19, 2004, or, if she disagreed, submit her resignation and receive eight weeks’ severance pay.

Lelievre protested this choice and demanded six months’ severance. She then e-mailed several fellow employees stating that it was her last day at the company. This e-mail was forwarded to her supervisor and the branch manager of the Vancouver office. Assuming Lelievre was resigning, the branch manager gave her a note listing items he would need from her before she left. Her supervisor also demanded the company car back.

Lelievre did not show up for work on the next business day and her supervisor sent her a letter stating since she hadn’t contacted the company, it assumed she had resigned. The company paid her for the next two weeks, despite her absence. Lelievre filed for wrongful dismissal, claiming she was blindsided by the March 18 letter and given no real choice. The company claimed it had undertaken progressive discipline up to the evaluation and she was aware of its concerns. Her dismissal request and e-mails to co-workers indicated she intended to resign.

You Make the Call

Was the worker terminated?
Did the worker resign?

If you said the worker was terminated, you’re right. Although Lelievre could have been perceived to have resigned, she didn’t make the formal decision to do so. Her supervisor was aware of her state of mind but accepted what she believed was her resignation without giving her a chance to reconsider. Although Lelievre had e-mailed co-workers saying it was her last day, she hadn’t informed any member of immediate management. The court noted Lelievre had more options available than the choice given her by her supervisor’s letter but that choice was prevented when the company car and property was requested to be returned.

“Before she fully considered her position and made any formal decision to resign, the (company) effectively terminated her access to place of work,” the court said. “In all of these circumstances, I find the (company) did indeed terminate (Lelievre’s) employment without reasonable notice.”

Lelievre was awarded six months’ notice, taking into account her experience and limited employment opportunities.

For more information see:

Lelievre v. Commerce and Industry Insurance Co. of Canada, 2007 CarswellBC 392 (B.C. S.C.).

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