Employer Must Take Meaningful Steps to Confirm Voluntary Resignation or Risk Paying Damages for Wrongful Dismissal
January 25, 2023
January 25, 2023
Previously printed in the LexisNexis Labour Notes Newsletter.
In the recent decision of Burd v. Tahtsa Timber Ltd., 2022 BCSC 1372, the BC Supreme Court confirmed that an employer cannot simply assume that an employee has voluntarily resigned from his or her employment. Rather, the employer must take meaningful steps to confirm that the employee has in fact resigned.
The 68-year-old plaintiff, Donald Burd, was employed at the defendant logging company, Tahtsa Timber Ltd., for over 15 years as a commercial truck driver.
In the summer of 2019, the plaintiff had a medical emergency that required him to be off work for almost one year.
On June 15, 2020, the plaintiff contacted his employer about returning to work. His employer advised him that it would require medical clearance before he could return. The plaintiff provided his employer with that information two days later.
At this point, there was a divergence in the evidence of the parties. The plaintiff stated that after he provided medical clearance, he tried to contact his employer multiple times to inquire about when he would be scheduled to return to work, but never heard back.
Having heard nothing from his employer, the plaintiff said he then went to the office to collect some of his personal items and, while there, was told by his foreman that he would be contacted at a later date about when he would be scheduled to work. The plaintiff claimed he never heard back. He waited until October 2020 before seeking alternative employment, which he claimed was difficult to secure given his age and recent medical history.
The employer, on the other hand, stated that after it received medical clearance, it tried to contact the plaintiff several times but received no response. The employer stated that it even scheduled the plaintiff to work, but he never responded. As a result, by September 2020, the employer assumed the plaintiff had quit.
The plaintiff commenced a Supreme Court action for wrongful dismissal.
Issue at Trial and Findings
At trial, the issue was whether the plaintiff had voluntarily resigned from his employment or was dismissed from employment without cause.
The Court discussed the difference between a dismissal and a voluntary resignation.
Although both a dismissal and a resignation require “a clear and unequivocal act by the party seeking to end the employment relationship”, there is a distinction, the Court held, in the legal test to be met in order to establish each of these methods for ending the employment relationship.
A finding of dismissal must be based on an objective test: whether the acts of the employer, viewed objectively, amount to a dismissal.
A finding of resignation requires the application of both a subjective and objective test: whether the employee intended to resign and whether the employee’s words and acts, objectively viewed, support a finding that he or she resigned.
Against this backdrop, the Court determined that the plaintiff did not intend to resign from his employment and was therefore dismissed without cause and without notice. The Court noted that although both parties “were operating under a misapprehension of the other’s intentions due to a lack of communication”, the employer should not have simply assumed that the plaintiff was not returning to work. The Court stated:
… [T]he failure to take meaningful steps to confirm that assumption, including by following up on the August conversation about fall hauling, and the corresponding failure to provide any further work to the plaintiff amounts to a clear and unequivocal communication that the plaintiff’s employment had been terminated.
With respect to the appropriate notice period, the plaintiff did not have a written employment agreement. He was awarded damages in the amount of $73,879.38 based on 15 months of reasonable notice, less the amount he earned from alternative employment.
The Court dismissed the plaintiff’s claims for aggravated and punitive damages given that his employment ended largely as a result of miscommunication between the parties, and not because of some improper or bad faith on the part of the employer.
Takeaways for Employers
This case highlights the particular caution that employers must take when they believe an employee has resigned. They cannot simply assume that an employee who has not returned to work has abandoned his or her employment. Employers have a positive obligation to take meaningful steps to confirm that the employee has in fact resigned and then clearly communicate acceptance of the resignation to him or her.
The case also provides a good reminder to employers that written employment contracts with enforceable termination language can significantly limit an employer’s exposure in the event of a termination of employment without cause, and are therefore a worthwhile upfront investment.
While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.