In Khangura v Lumberwest Building Supplies Inc., 2023 BCSC 1053, the Supreme Court of BC had to consider whether an employee was terminated without cause, or voluntarily resigned from his employment.
There were three emails from the employer to the employee at issue. The first email set out several concerns with the employee’s work performance and referred to the employer’s right to terminate for cause under the employment contract. The second email, sent six days later, said that it was to be considered 30 days’ written notice to terminate the employment agreement. The third email, sent the next day, attached the first email and again set out the concerns with the employee’s work performance.
The employee argued that he was terminated without cause through the email communications with the employer, which he understood to indicate the termination of their employment contract with 30 days’ notice.
The employer argued the employee was not terminated through the email communications, and either voluntarily resigned or abandoned his employment. The employer argued that the email communications at issue rather were to communicate to the employee concerns with his performance and its expectations that these would be addressed within 30 days or the employer would take termination action.
The court cited Beggs v. Westport Foods Ltd., 2011 BCCA 76, which sets out the test to use when deciding whether an employment relationship has been terminated through dismissal by an employer or through a voluntary resignation by an employee. In short, the test for dismissal by an employer is an objective one, while the test for resignation by an employee is both subjective and objective. The test includes the following:
• For a dismissal by an employer, there must be a clear and unequivocal act by the employer that, objectively viewed, amounts to a dismissal and which would be understood as such by a reasonable person.
• For a resignation by an employee, the employee must have intended to resign, subjectively viewed, and the employee’s words and acts, objectively viewed, support a finding of resignation.
The court decided the employer did not clearly and unequivocally dismiss the employee. The court found the second email indicating the 30 days’ notice could not be read in isolation and had to be read together with the other emails. The court found that a person in the employee’s position having received the communication from the employer could not reasonably have concluded their employment had been clearly and unequivocally terminated.
The court concluded that a reasonable response to such communication would have been to make further inquiries of the employer, as the employee did. However, the court found it was not reasonable for the employee to then take the position that he was dismissed without cause by the employer in the face of the clear and unambiguous statements to the contrary sent to him by the company’s representatives afterwards.
In this case, the employee effectively resigned by abandoning his employment. He was therefore not entitled to claim damages for wrongful dismissal.
In the result, the court dismissed the case against the employer.
This decision is important for employers to be aware of when it comes to discussing employment status and potential termination with their employees. Employers should be aware that if they do not intend to dismiss an employee, they must ensure their acts and communications with employees cannot be objectively viewed as amounting to a dismissal. Link to the full decision is available here: 2023 BCSC 1053 Khangura v. Lumberwest Building Supplies Inc. (bccourts.ca)
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