Even if an employee says "I quit," the surrounding circumstances must be taken into account before accepting a resignation.
The courts have made it very clear: An employee’s resignation must be unequivocal, taking into account all of the circumstances in which it was delivered. Otherwise the termination will amount to wrongful dismissal, which will attract severance in lieu of notice.
In Moreno v. Comfact Corp., the Ontario Superior Court of Justice affirmed recent case law in British Columbia and held that if an employer wishes to rely on an employee's resignation, it must be clear and without doubt.
In Moreno, the court was faced with a critical question: Was he fired or did he quit? Even though Juan Moreno had provided his employer with a resignation letter, the parties decided to work out their issues and Moreno withdrew his resignation. Although the parties agreed they would continue on as though nothing had occurred, the employer still had the resignation letter on file and it attempted to use this at a later date to allege he had resigned. Based on the evidence, Moreno did not quit but rather he was fired, found the court.
In Bru v. AGM Enterprises Inc., the British Columbia Supreme Court found Joey Bru's "resignation" was not clear enough to be considered a resignation and, therefore AGM had wrongfully dismissed her. Bru was a deli clerk at the Mediterranean Market in Kelowna, B.C. After two and a half years of employment at the market, Bru was called in by her manager to discuss a conflict that had developed between her and another deli clerk.
Bru became upset during the meeting and requested permission to go home for an hour. Within the hour, Bru called the manager and told him she was not well enough to return to work for the rest of the day. Bru's next scheduled date to work was two days later on Nov. 12, 2007. However, she didn't show up for her shift and then called the deli supervisor on Nov. 13. Despite contradictory testimony regarding the Nov 13. telephone conversation, the supervisor heard correctly that Bru had said, "I can't take it any longer and I am quitting," found the court.
However, this did not mean Bru made a clear and unequivocal resignation of her position, said the court. The supervisor did not ask any follow up questions to ascertain if Bru truly meant what she said or was simply voicing a frustration.
On Nov. 14, Bru called her manager and asked if she still had a job. The manager said Bru had quit and been replaced. Bru denied quitting. On Nov. 19, Bru received her last paycheque and record of employment. When it was clear there was a misunderstanding, the employer could not rely on Bru's previous comments and ignore the surrounding circumstances, including her plea she had not quit, found the court.
Where the fact of a resignation is in doubt, an objective test is applied: Given all the circumstances, would a reasonable person have understood the employee's statement to mean a resignation?
This test affirmed in Cox v. Victoria Plywood Co-Operative Assn., Ata v. Carter Pontiac Buick Ltd., and Assouline v. Ogivar Inc. Furthermore, in Gebreselassie v. VCR Active Media Ltd., the Ontario Superior Court of Justice summarized the standard of proof required to establish a voluntary resignation:
A valid and enforceable resignation must be clear and unequivocal - to be clear and unequivocal, the resignation must objectively reflect an intention to resign or conduct evidencing such and intention."
Bru and supporting cases stand for the proposition an employer, in circumstances where the employee may be under stress, should raise questions regarding his emotional state and true intentions when receiving or attempting to rely on a resignation statement.
The case did not depend on perfect accuracy or consistency on the part of Ms. Bru, or any other witness, but on an objective assessment and weighing of all the evidence and preponderances of probability on each issue," found the court in Bru.
It's important for employers to ensure - when resignation statements are made in the heat of the moment or if an employer is mentally or physically distressed - the surrounding circumstances are taken into consideration before a resignation is accepted.
For more information see:
- Moreno v. Comfact Corp., 2009 CarswellOnt 3975 (Ont. S.C.J.).
- Bru v. AGM Enterprises Inc., 2008 CarswellBC 2635 (B.C. S.C.).
- Cox v. Victoria Plywood Co-Operative Assn., 1993 CarswellBC 1197 (B.C. S.C.).
- Ata v. Carter Pontiac Buick Ltd., 2002 CarswellBC 842 (B.C. S.C).
- Assouline v. Ogivar Inc., 1991 CarswellBC 873 (B.C. S.C.).
- Gebreselassie v. VCR Active Media Ltd., 2007 CarswellOnt 6929 (Ont. S.C.J.).