Employment Law

Resignation by Employee or Wrongful Dismissal by Employer?

Written on behalf of Getz Collins and Associates on
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Deciding to resign from a job is a pivotal moment fraught with emotions, uncertainty, and a myriad of questions. Employees can quickly find themselves standing at the crossroads of loyalty to a job and the drive for personal growth when contemplating the prospect of abandoning a job. The decision to resign or terminate an employee can have long-lasting consequences for both parties and is not taken lightly. 

This blog will distinguish between employee resignation and job abandonment and navigate the complexities involved in employee termination in light of a recent decision from the Court of King’s Bench. In this unique case, the primary question before the Court was whether the employee had resigned from or abandoned his job while the employee believed he had been wrongfully terminated.   

Employee seeks damages for wrongful dismissal

In the case of Stonham v Recycling Worx Inc, the plaintiff employee, Mr. Stonham (the “employee”), applied to the Court for a summary trial in his wrongful dismissal claim against the defendant employer, Recycling Worx Inc (the “employer”), which was filed on October 2, 2020. In his claim, the employee claimed that he had suffered:

The employee sought to recover $32,000 in damages arising from wrongful dismissal and an aggregate amount of $75,000 for general, aggravated, exemplary and punitive damages. However, at the summary trial application, the employee abandoned claims related to workplace harassment, breach of the duty of good faith or statutory duty, and aggravated, exemplary or punitive damages.

Employee placed on modified duties after work accident

The employer filed a statement of defence on December 8, 2020, denying all of the employee’s claims. Specifically, the employer denied that it had terminated the employee’s employment and argued that the employee had resigned from his employment. As such, the employer claimed that the employee did not suffer any damages or losses.

Upon review of the employment history, the Court noted that the employee was injured when he fell off his work truck in October 2019. Following this, he was off of work for two weeks. After returning, he was assigned modified duties before transitioning to clerical work. In December 2019, the parties discussed the employee returning to full-time pre-accident duties in January 2020. 

In early January 2020, the employee was cited for three disciplinary events related to being late for work and failing to complete a PPE Maintenance Record in May 2019. On January 9, 2020, he accepted an offer of modified work at his pre-accident wage to perform clerical work. However, he felt he was given “menial tasks.”

Employer deems employee to have resigned from job

On January 10, 2020, the employee wrote to the employer, alleging that he had experienced harassment and bullying by other employees since his accident. The employer conducted an internal investigation that failed to substantiate his allegations. On January 20, 2020, the employee provided a letter from a psychologist indicating that he required a two-week medical leave immediately. However, this was extended indefinitely on February 4, 2020. The employee did not complete work for the employer after January 20, 2020. 

The employee was expected to return from work on September 15, 2020, and asked the employer to agree to let him start as a helper before September 15, 2020, but the employer disagreed. However, neither party confirmed whether the employee would be returning on this date, and as such, the employee did not attend work between September 15 and 17, 2020. On September 18, 2020, the employee, through his legal counsel, asked to be reinstated as a driver. On the same day, the employer responded with a resignation acceptance letter confirming the employee’s resignation effective September 17, 2020, after he failed to call into work for three days, which deemed him to have resigned, and a record of employment was enclosed.

Did the employee resign or abandon his employment?

The question before the Court was whether the employee had resigned from or abandoned his employment or whether the employer wrongfully terminated the employee. The Court explained that an enforceable workplace policy “must be reasonable, unambiguous, well published, consistently enforced, and the employee must know or ought to have known of the policy, including consequences of breach.” 

The Court noted that the employee had seen and signed the employment handbook containing the resignation provision. However, this clause altered a fundamental term of his employment and was, therefore, not enforceable in this situation because:

  • The employee had not received fresh consideration for the agreement beyond continued employment and 
  • When a clause takes away a fundamental right (for example, in this case, it removed the common law meaning of the term “resignation”), any ambiguity is to be resolved in favour of the employee. 

Court finds employee did not resign

In determining whether the employee had resigned in accordance with the meaning under the common law, the Court applied a subjective and objective test:

“subjectively, did the employee intend to resign; and objectively, viewing all the circumstances, would a reasonable employer have understood that the employee had resigned?  Ordinarily, there must be a clear and unequivocal act in the form of a statement of an intention to resign or positive conduct from which that intention would clearly appear.” 

In this case, the Court found that the employee did not subjectively intend to resign from his employment, but rather, he sought to return as a driver as soon as possible. The Court also found that, on the balance of probabilities, no reasonable employer would have understood the employee to have resigned. 

Court finds employee did not abandon employment

In assessing whether the employee had abandoned his employment, the Court considered “whether, viewing the circumstances objectively, a reasonable person would have understood from the employee’s words and actions, that she or he had abandoned the employment contract.” Again, in this case, the Court did not find that the employee had abandoned his job and that no reasonable employer would have concluded otherwise. 

Court awards 2.5 months reasonable notice period

Accordingly, the Court concluded that the employer had wrongfully terminated the employee. As such, the employee was awarded a 2.5-month notice period given his three years of service with the employer. 

This case highlights the tests a court will apply to determine whether an employee has resigned or abandoned their employment. It also highlights the need for employees to receive fresh consideration when a provision purports to change a fundamental aspect of the employment relationship for it to be binding. This requirement is “particularly pronounced where the employer seeks to modify the employment contract to limit the notice to be provided upon termination since that change represents a “tremendously significant modification of the implied term of reasonable notice.””

Contact the Labour and Employment Lawyers at Getz Collins and Associates for Exceptional Representation in Wrongful Dismissal Claims 

At Getz Collins and Associates, our trusted team of skilled labour and employment lawyers understand that allegations of wrongful dismissal and workplace harassment can be followed with significant consequences. This is why we provide employees and employers with comprehensive and practical legal advice regarding their claims so that they can make informed decisions while working to resolve the dispute. Whether you believe your employer has wrongfully dismissed you or are an employer facing allegations of workplace harassment and discrimination, we can help. Contact our team online or call us at (587) 391-5600 to schedule a confidential consultation and learn how we can help you.