DEEMED RESIGNATION AFTER A DIFFICULT EMPLOYEE WAS SENT HOME FROM WORK AND REQUESTED AN ROE

A recent decision of the BC Supreme Court (Coutlee v Apex Granite & Tile Inc., 2020 BCSC 315) provides a useful example of where an employee’s words and actions will be interpreted as a voluntary resignation rather than a dismissal. 

Summary of Facts

The defendant company, Apex, provided tile and granite installation services. Apex hired the employee (Mr. Coutlee) as a tile setter on May 4, 2017.  His last day of work was August 17, 2018. The company’s operations manager testified that the employee had an attendance problem from the start of his employment, and was often late. The employee blamed the absenteeism on several issues. The employee also often thought he knew better than his supervisors and tried to tell them how they should perform jobs his way.  He also sometimes failed to follow instructions from supervisors, which resulted in other employees having to re-do his work. There were a couple of instances before August 2018 where the employee was sent home from job sites due to his conduct.  

On August 17, 2018, the manager was on a job site and asked to speak with the employee.  The employee responded with “I refuse to talk to you”. The manager tried a number of times, and made it clear that it was a safety risk if the employee refused to take directions from a supervisor. The manager said he would have to suspend the employee if he refused to speak with him.  he employee quickly said, “Am I fired?” and the 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.” The employee asked again if he had been fired and the manager said “No”. The manager tried to talk to the employee again but he took his tools and left the site. The manager thought the employee would cool off and then contact the company for his next assignment in the coming days. The manager decided to prepare a notice of non-compliance to provide to the employee when he next reported to work. 

The employee contacted the manager a of couple weeks later requesting a record of employment so he could apply for EI. The manager was on vacation when the employee contacted him. The manager took the ROE request as an indication the employee had resigned. 

Issue and Analysis

The employee commenced an action alleging he was dismissed instead of suspended on August 17, 2018. The test for dismissal is purely objective, asking whether the acts of the employer objectively viewed, amount to a dismissal. 

The company argued the employee had voluntarily resigned. 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.  

The trial judge found the employee generally lacked credibility and accepted the evidence of the manager and others. The trial judge found the dispute of August 17, 2018 ended with a clear statement that the employee was not dismissed.  The employee had also been sent home on previous occasions and had not argued on those occasions that he had been dismissed (and he had not requested an ROE on those previous occasions).  These factors made it difficult for the employee to argue he had been dismissed this time.  

The trial judge concluded the employee had voluntarily resigned. His case was therefore dismissed.

Implications for Employers

This case highlights the importance of the specific context and communications when considering whether an employee has resigned or been dismissed after a difficult encounter with an employee. In some circumstances, an employee being sent out of the workplace would be interpreted as a dismissal. However, in this case the employee had been sent home before as a suspension, he was refusing to speak with the manager, and he was specifically told he was not being fired.

This update was authored by Scott Marcinkow. Questions? Comments? Concerns? Contact Scott at smarcinkow@harpergrey.com or anyone else listed on the authors page.