Did You Dismiss Your Employee or Did They Resign? A Recent Example of Resignation
When an employee voluntarily resigns from their employment they cannot successfully sue their employer for wrongful dismissal. However, determining whether an employee has actually resigned is not always straightforward. In the recent BC Supreme Court decision, Coutlee v. Apex Granite & Tile Inc., 2020 BCSC 315, the Court had to determine whether an employee had resigned or been dismissed after he was asked to leave the job site.
The employer, Apex, provided tile and granite installation services in the construction sector. Apex employed Mr. Coutlee on several projects. There were a few incidents prior to August 17, 2018 when Mr. Coutlee had been suspended, but Mr. Coutlee himself, had never treated the suspensions as terminations.
On August 17, 2018 Mr. Coutlee refused to speak with the operations manager on site. The operations manager said he would have to suspend Mr. Coutlee if he refused to speak with him. Mr. Coutlee abruptly said, “Am I fired?” The operations manager said “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.” Mr. Coutlee asked again if he had been fired and the operations manager said “No.” After the incident the operations manager directed a supervisor to prepare a “notice of non-compliance”. The operations manager assumed Mr. Coutlee would cool off and call for his next work assignment, but he never returned and a few weeks later when Mr. Coutlee called to ask for his ROE, the operations manager took this as an indication he had resigned.
The central issue in this case was whether the actions of Mr. Coutlee amounted to resignation, or whether the employer’s actions amounted to dismissal.
Analysis and Conclusion
The Court determined that Mr. Coutlee’s employment was not terminated. The test for dismissal, or termination is purely objective: “A finding of dismissal must be based on an objective test: whether the acts of the employer, objectively view, amount to dismissal.” The dispute on August 17, 2018 between the operations manager and Mr. Coutlee ended with a clear denial from the operations manager that Mr. Coutlee’s employment had been terminated. Mr. Coutlee did not meet the burden to prove that he had been dismissed.
The Court went on to analyze whether Mr. Coutlee had resigned. A resignation must be clear and unequivocal. As stated by our Court of Appeal in Beggs v. Westport Foods Ltd., 2011 BCCA 76, a finding of resignation involves a two-part analysis:
- Did the employee intend to resign?; and
- Did the employee’s words and acts, objectively viewed, support a finding that he or she resigned?
The court concluded that due to his past dealings with Apex, Mr. Coutlee’s request for a ROE was a clear and unequivocal expression of his voluntary intent to resign.
Ultimately, the Court dismissed Mr. Coutlee’s claim for wrongful dismissal.
Take-away for employers
Employers should be careful in their communications with employees who are asked to leave the job site (or leave in a huff), and make sure to keep good records of their dealings with the employee.