By Robert Smithson

Employers sometimes show a real knack for overplaying the hand they’ve been dealt.  One instance where that tendency is displayed is in mishandling the apparent resignation of a difficult employee.

This is a scenario which is played out with surprising frequency.  So common is it that a body of case law has developed to answer the question, “when can we rely on an employee’s statement of an intention to resign?”

The problem for employers is that not all employees quit in a reliable fashion.  Ideally, the employee provides a letter of resignation and then, on the designated day, ceases to provide employment services.  In such an instance, there would be little difficulty concluding a voluntary resignation has occurred.

Many times, however, a resignation or quit is the result of a momentary, emotional blowup.  The employee, in a rush of anger, declares, “That’s it!  I’m out of here!” (or something similar) and storms out of the workplace. 

The employer accepts, and adheres to, the initial statement of resignation.  Then the employee returns (after having cooled off) and declares he never had any actual intention of quitting.  This is when lawyers and judges are called upon to assist in determining the impact of what happened. 

The B.C. Supreme Court recently dealt with such a scenario involving a Kelowna employer. 

Mediterranean Meat Market Ltd. was the employer of Ms. Joey Bru at its Kelowna location.  Bru worked the counter at Mediterranean’s busy deli counter.  This was, by all accounts, a highly stressful position for her. 

Adding to the stress for Bru was some ongoing conflict between deli staff – gossiping and quarrelling and the like.  Bru had indicated an inability to handle the stress and sought a less demanding role. 

In November, 2007 Bru was experiencing a personal conflict with one of the other deli staff.  As the situation came to a head, Bru had a discussion with the deli supervisor during which Bru stated, “I can’t take it any longer and I am quitting”.

Mediterranean accepted the apparent resignation and, despite Bru’s later statements clarifying that it was not her intention to quit, held firm in the position she had resigned.  Bru’s evidence was that, the next day, she told each of the supervisor, the owner of the business, and the bookkeeper that she had not quit.

As tends to happen in such situations, the matter ended up in litigation with Bru suing her former employer for wrongful dismissal.  The Supreme Court of B.C. trial judge heard the testimony of the parties and concluded Bru had not quit and, therefore, had been wrongfully dismissed. 

The Court closely considered the circumstances and discussions leading to the employer’s conclusion that Bru had quit.  It characterized her statement, “I can’t stand it any longer” to the supervisor as a “statement of distress to someone the speaker considered a friend as well as a supervisor”.  It concluded Bru’s statements and the surrounding circumstances “should, in the mind of a reasonable person, at least raise questions about Ms. Bru’s emotional state and true intentions when she made her statement.”

The Court repeated the law relating to statements of resignation.  When the fact of the resignation is in doubt, an objective test must be applied to determine whether, in all the circumstances, a reasonable person would understand by the employee’s statement that she had resigned.  A valid and enforceable resignation must be clear and unequivocal meaning it must objectively reflect either an intention to resign or conduct evidencing such an intention.

When supposed resignation statements are made in the heat of the moment, or stated in the middle of highly charged meetings, or when the employee is mentally or physically distressed, those are surrounding circumstances to be considered.  Emotional or angry outbursts are not a reasonable basis for an employer to conclude that an employee intended to resign.

Even when an employee has made an unequivocal declaration of resignation, in some circumstances, this cannot be taken at face value; some time for the parties to cool off, gather their thoughts and reconsider might be the most reasonable and fair response.

The Court determined that Ms. Bru did not clearly and unequivocally resign from employment with Mediterranean.  It found that Mediterranean “simply stopped up its ears and refused to pay any regard to what Ms. Bru was saying”.  It described Mediterranean’s conduct, after Bru’s initial statement, as a “hear nothing, see nothing, speak nothing response” and as “stone walling in response to her statements that she had not quit”.

In the result, Bru was awarded 3 months pay in lieu of notice, $17,000 additional damages (for  Mediterraneans’s violation of the duty of good faith and fair dealing in the manner of termination), and legal costs.

Employers would do well to look at the issue of employee resignations using a two-stage analysis.  First, has the employee used words which, when viewed objectively, indicate an intention to resign?  The words don’t have to be as clear as “I quit” but should have a similar effect.

Second, have the employee’s subsequent actions indicated a subjective intention on her part to resign?  If so, then initial words will have been confirmed and the two-stage analysis should be complete. 

Watch out for the employee who recants, indicating a newfound desire to remain in employment.  That is often the case after an emotional blowup.  In those circumstances, judges can be expected to conclude the incident was little more than a momentary, emotional lapse and can be expected to give the benefit of the doubt to the employee.

Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, log onto www.pushormitchell.com. If you have a labour or employment question for him to answer in a future “Legal Ease”, email him at smithson@pushormitchell.com. This subject matter is provided for general informational purposes only and is not intended to be relied upon as legal advice.