Mar 11, 2020

Employee resigned by failing to return to work following suspension

Coutlee v Apex Granite & Tile Inc., 2020 BCSC 315 (CanLII)

A wrongful dismissal claim was dismissed in Coutlee v Apex Granite & Tile Inc., 2020 BCSC 315 on the basis that the plaintiff had voluntarily resigned - and had not been terminated - from his employment. The wrongful dismissal action failed as the Court found that there had been no dismissal at all.

Background

The plaintiff, an experienced 60 year old tile setter, was employed with the defendant for approximately 15.5 months. During his tenure, the plaintiff had a number of arguments with management. The plaintiff was sent home from work at least twice following arguments with management. On both occasions, work resumed when the plaintiff contacted the defendant.

The plaintiff's final day of work, in August, 2018. followed an incident between the plaintiff and the defendant's operations manager, Mr. Bordt. While the parties' had different recollections of the event in question, the defendant's evidence was generally preferred, as the Court concluded that the plaintiff was evasive and lacking credibility.

In his recollection of the day in question, the plaintiff recalled that Mr. Bordt arrived at his work site and asked to speak with him. The plaintiff responded that he would only speak to Mr. Bordt if he were to offer the plaintiff a raise or discuss his job performance. Mr. Bordt explained that the plaintiff would be a danger on the work site if he refused to speak with management, and directed the plaintiff to remove his tools and leave. The plaintiff acknowledged that Mr. Bordt never said that he was fired.

Mr. Bordt recalled the plaintiff's final day slightly differently. He attempted to chat with the plaintiff, but the plaintiff stated "I refuse to talk to you." Mr. Bordt warned that he would have to suspend the plaintiff for safety reasons if he would refuse to speak with his management. The plaintiff asked if he was fired. Mr. Bordt responded:

No, I want to talk to you but if you won’t talk to me you are suspended and you can pack up your tools and get off the site.

Again, the plaintiff asked if he was fired, and again Mr. Bordt responded that he was not. As Mr. Bordt attempted once more to speak to the plaintiff, the plaintiff took his tools and left.

Following the incident between Mr. Bordt and the plaintiff, the defendant prepared a "Notice of Non-Compliance" to provide to the plaintiff upon his return, stating that his suspension would end when “he made contact with management to resolve the issue and return to work.”

However, neither party contacted each other immediately following the incident. The plaintiff testified that he expected to receive his Record of Employment and final paycheque within three days. Mr. Bordt testified that he expected the plaintiff to cool off and get in touch with the defendant for another assignment.

There was no further contact between the parties until one week later, when the plaintiff contacted a supervisor to request his paycheque. The supervisor responded that the plaintiff would have to wait until the regular payday like everyone else. A couple of weeks after the incident, the plaintiff requested his Record of Employment, which the defendant understood to mean that the plaintiff had resigned.

Issue

Did Mr. Coutlee resign or was he dismissed?

Decision

In order to determine whether the plaintiff resigned or was dismissed, the Court relied on the relevant tests set out by the BC Court of Appeal in Beggs v. Westport Foods Ltd., 2011 BCCA 76. Whereas the test for a termination is purely objective, the test for a resignation contains both an objective and a subjective element (at paras 160-161):

Resignation has both an objective and a subjective component. A resignation must be clear and unequivocal, in that it must objectively reflect an intention to resign...

[T]he test for a dismissal, or termination, is purely objective: “A finding of dismissal must be based on an objective test: whether the acts of the employer, objectively viewed, amount to a dismissal”...

In light of Mr. Bordt's clear statement to the plaintiff that he was not dismissed, the Court noted that it would be difficult for the plaintiff to prove a dismissal. This conclusion was reinforced in part by the fact that the plaintiff had not treated similar previous suspensions as a dismissal.

Rather, the plaintiff's failure to make contact with the defendant to return to employment (as he had done following his previous suspensions), coupled with his request for a Record of Employment, was fairly interpreted by the defendant as a resignation. As a result, the defendant was successful in establishing that the plaintiff had initiated the termination of the employment, and the plaintiff's wrongful dismissal claim was dismissed.

The plaintiff also made an alternative argument of constructive dismissal, which was dismissed as the plaintiff could not establish a breach of contract.

Author: Brendan Harvey is an employment lawyer in Vancouver, BC practicing on the North Shore with Yeager Employment Law. This article first appeared at www.onthecase.ca.