Employment: Resignation or Dismissal?
In a recent case, a court had to determine whether an employee had resigned or been dismissed after an argument with his manager.
The employee is a 60-year-old tile setter of long experience.
The employee began employment with the employer on May 4, 2017. The employer is a tile and granite installation company in the construction sector.
The employee’s full-time employment was not guaranteed but the employer tried to give him 40 hours of work a week as long as it had work to provide and his skills were suitable for a particular job site.
During his employment, the employee was involved in several disputes with management.
On August 17, 2018, the employee was asked to leave the job site on which he was working, following a dispute between the employee and a manager.
At trial, there was dispute as to what transpired that day.
The employee claimed that the manager arrived at the work site and asked to speak to him. The employee said he told the manager he would not speak to him, unless the manager was offering him a raise or to talk to him about his job performance. The employee claimed that the manager stated that if he refused to talk to management, he was a danger on the site and then told him to take his tools and get off the site. When the employee asked if he had been fired or laid off, the manager said he was neither, and again told him to take his tools and get off the site.
The employee told others he had been fired and expected to receive his record of employment and final paycheck within the next three days.
However, when he received his next paycheck, there was no record of employment attached. The employee then texted the employer asking for his record of employment so he could apply for employment insurance.
In contrast, the employer claimed that it had not intended to fire the employee, as the manager clearly told the employee during the incident. The employer had intended to suspend the employee for non-compliance upon his return to work. However, when the employer received the employee’s request for his record of employment, it believed he had resigned.
The employee sued the employer for wrongful dismissal.
The central issue was whether the actions of the employee amounted to resignation or the employer’s actions amounted to dismissal.
The court explained that 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. It also stated that the 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.”
The court concluded that because the dispute of August 17, 2018 ended with a clear denial by the manager that the employee’s employment had been terminated, the employee did not meet his burden to prove he had been dismissed. Additionally, the court found that a reasonable employer would have seen the employee’s request for a record of employment as a clear and unequivocal expression of his voluntary intent to resign.
As a result, the court found that the employee voluntarily resigned his position and dismissed his claim.
The Kitchener-Waterloo employment lawyers at Petker Campbell Postnikoff have many years of experience advising non-unionized employees and employers on a variety of workplace issues, including harassment and termination. Our team will walk you through the details of your dispute, advise you on your rights, responsibilities and obligations, and help you understand your options. If your dispute cannot be settled through negotiation, we can represent you through mediation and the court process.
We represent clients throughout southern Ontario, including the communities of Cambridge, Guelph, Elmira, Brantford, Fergus, Elora and the surrounding area. Call 519-886-1204 or contact us online for a consultation.