A common issue that I have seen in my practice is situations where an employment arrangement appears to have come to an end, but there is no agreement between the parties as to what has happened.  Did the employee resign?  Were they fired?  What does it mean, legally, when an employee fails to show up to work without contacting the employer?

Understanding how these issues are assessed by the court is critical to avoiding costly errors that may lead to years of otherwise unnecessary litigation.

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Resignation

Most simply, a resignation occurs when an employee initiates the termination of their employment.  The resignation itself must be both clear and unequivocal.  The test for resignation is a very stringent one, as it has both an objective and subjective component.  Subjectively, the employee must intend to resign, and objectively, the employee’s words and acts must support a finding that they resigned.  

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An employer cannot always immediately accept even an apparently clear resignation, especially if the resignation is given in the context of an emotional outburst.  

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Because the test is so stringent, it is very easy for a situation to arise where an employer believes that a resignation has occurred when, from a legal perspective, it has not.

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By way of example, in the case of Bishop v Rexel Canada Electrical Inc., 2016 BCSC 2351, the court found that there was no resignation in a case where the employee said he was ‘not coming back’, advised ‘yes’ when asked if he was resigning, and when asked again, confirmed again that he was ‘done’.  In Bishop, the court found that no resignation had occurred because the employer had a duty to revisit and inquire about the employee’s statement of resignation because it had occurred during an emotionally heated exchange.  

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In English v Manulife Financial Corporation, 2019 ONCA 612, the Ontario Court of Appeal found that submitting a letter of resignation was not a resignation, when an employee had also indicated, verbally, that she was not entirely sure about retiring.  Under the circumstances, this was found to be equivocal, and the employee was permitted to withdraw it the resignation.

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Furthermore, employees can revoke even a clear resignation until it has been accepted and acted upon by the employer.

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Job Abandonment

An employee who leaves their employment does not always formally communicate an intention to resign.  Sometimes, they will simply stop attending work.

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The test in this case is similar to the test for resignation, except that there is no subjective element.  Abandonment occurs when, view objectively, a reasonable person would understand from the employee’s words and actions that he or she had abandoned the contract of employment, typically by failing or refusing to attend work without reasonable excuse.

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As with resignation, the circumstances of abandonment matter.  A simple unexplained absence may not, on its own, constitute abandonment.

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For example, in Koos v A & A Customs Brokers Ltd., 2009 BCSC 563, an employee on sick leave who failed to return messages from his employer was not found to have abandoned her employment, despite evidence that she had received and reviewed the messages, which asked for an update on her status.

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Where there has been conflict between the employer and the employee, the employer will likely have an obligation to clarify the employee’s intentions and warn the employee that a failure to return to work as instructed will be considered abandonment.  

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Dismissal

An employee has, as a matter of law, the right to terminate an employee on reasonable notice (or without notice where cause exists).

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Like abandonment, the test for dismissal is purely objective.  The test if whether the acts of the employee, objectively viewed, amount to a dismissal. The crucial factor is the clarity with which the dismissal is communicated to the employee.  The notice must specifically and unequivocally indicate that the employment is coming to an end.  

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As with resignation and termination, a purported dismissal made under heated circumstances may not actually be a termination.  In Raypold v McEvoy Oilfield Services,[1977] 1 ACWS 111, 2 AR 134, the court found that there was no termination where, in the context of a drinking party, a vice-president told a manager that he wanted to fight him and he was fired.  The vice-president apologized the next day, told the manger he was not fired, and gave a written apology.  The court found, in the circumstances, that there could be no finding of dismissal.

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TAKEAWAYS

Whether an employment contract has come to an end is not always easy to determine, especially if it takes place in emotionally charged circumstances.  Parties should take steps to clarify the other side’s intentions and remove any potential ambiguity before committing themselves to a particular legal position.      

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Employers will likely want to take great care to make sure that there is no ambiguity before holding that an employee has resigned or abandoned their position, and to give employees a chance to reconsider if the resignation/abandonment took place in an emotional situation.  Even where an employer has made a mistake by treating an equivocal situation as abandonment or resignation, the employer can sometimes salvage the employment relationship by admitting the error and agreeing to reinstate the aggrieved employee.  

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Employees should be aware that even if they have resigned or stormed out of work, they can often walk back a resignation or unexplained absence if they approach the employer soon afterwards to clarify their intentions.  At that point, if the employer insists on treating a resignation as binding, the court may find it is a dismissal instead.

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Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter please contact one of our group members. We communicate all these updates to our clients and readers on our Employer Resources Portal and through monthly Newsletters.

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