I've recently written about this here. The Supreme Court of British Columbia considered the circumstances under which a resignation will be effective in Bishop v. Rexel Canada Electrical Inc., 2016 BCSC 2351 (CanLII). Mr. Bishop was 61 years old and had worked for Rexel for 27 years, most recently as a buyer. He sued, claiming that he'd been wrongfully dismissed. The employer defended on the basis that he had resigned. The plaintiff argued that his resignation was not voluntary as it took place in the course of an argument that resulted when he was upset about being assigned additional work.
The Court laid out the relevant legal principles:
- If an employee voluntarily resigns from his or her employment, rather than being dismissed, the employee cannot bring a wrongful dismissal action: Gebreselassie v. VCR Active Media Ltd.,  O.J. No. 4165 (Ont. S.C.J.)
- In an action for wrongful dismissal the plaintiff bears the burden of establishing the threshold fact of having been dismissed from his or her position, as opposed to having resigned. The employer, however, must show that the actions of the employee which it alleges to be a resignation were voluntary.
- In Beggs v. Westport Foods Ltd., 2011 BCCA 76 (CanLII), the Court of Appeal summarized the two-part test as to whether an employee has voluntarily resigned from employment. A finding of resignation requires both a subjective element of intent and an objective element establishing the act of resignation. An assessment must therefore be made as to whether the employee intended to resign and whether the employee’s words and acts, objectively viewed, support a finding that he or she clearly resigned.
- The objective aspect of the test focuses on what a “reasonable employer” would have thought about the intentions of the employee based on what the employee says or does. The subjective aspect of the test takes into account the employee’s state of mind and his or her conduct in relation to that state of mind. This may well include the employee’s timely retraction, or attempted retraction of his or her alleged resignation.
- Whether words or actions amount to a resignation must be determined contextually, with reference to the surrounding circumstances: Gill v. A & D Precision Ltd., 2010 ONSC 4646 (CanLII) at para. 66; Robinson v. Team Cooperheat-MQS Canada Inc., 2008 ABQB 409 (CanLII) at para. 50.
The Court went on:
In fact, as the alleged resignation occurred during a heated exchange, Rexel had a duty to revisit the matter after a cooling off period to confirm Mr. Bishop’s intention to resign: Bru v. AGM Enterprises Inc., 2008 BCSC 1680 (CanLII).
In Lelievre v. Commerce and Industry Insurance Company of Canada, 2007 BCSC 253 (CanLII), Madam Justice Boyd said at para. 52:
… the law is clear that where an emotionally upset and angry employee exclaims “I quit”, the issue of whether he/she has resigned is not clear cut. The law recognizes that such utterances may not constitute a valid resignation. Nor should such a declaration be accepted without question by the employer. Rather the onus is on the employer to not accept such a spontaneous declaration without proper deliberation… [Emphasis added.]
Ultimately, Rexel did not meet its duty to inquire. Instead of asking Mr. Bishop to “confirm his resignation and eliminate any uncertainty” as required, it simply sent him a letter “accepting” his resignation and referred to a non-existent letter of January 4, 2016 from Mr. Bishop indicating his “resignation of employment”: Balogun v. Deloitte & Touche, LLP, 2011 BCSC 1314 (CanLII) at para. 36.
While there may be some issue about Mr. Bishop’s own duty to clarify, the letter of January 5, 2016 from Rexel indicating it had received his non-existent resignation letter naturally led Mr. Bishop to believe he was definitively fired and his employer was now being dishonest with him.
In the end, the Court concluded, in all the circumstances, that the plaintiff had not voluntarily resigned and that he had been terminated. The Court awarded him awarded him damages equal to 20 months reasonable notice.
The Court then considered whether the plaintiff failed to mitigate when he refused to accept an offer of re-employment from Rexel. The Court considered the Supreme Court of Canada decision in Evans v. Teamsters Local Union No. 31, 2008 SCC 20 (CanLII). The Court in Bishop held that the onus is on the employer to show the employee acted unreasonably in rejecting an offer of re-employment and that, in the circumstances of this case, Bishop had acted reasonably in rejecting the employers' offer of re-employment. Among other things, the Court accepted that Mr. Bishop "was humiliated by the manner of his termination when escorted out of the building by management part way though his shift. This manner of termination has been found to demonstrate a significant deterioration in an employment relationship" and that "there was clearly a breach of trust and some animosity between the parties".