The Unintentional Dismissal: Be Careful What You Say to Your Staff
We all know that most Judges will try to protect employees when they can, as the perception is that employers have greater resources. In recent times, my firm has written about the dangers of accepting resignations too quickly and the need to allow an employee who purports to quit some time to cool down and reconsider. As my recent First Reference Talks post discusses, another recent case adopted a similarly protection approach but in a very different context: the unintentional dismissal. While you may not have heard of this concept before, it is, apparently, a thing.
In Sweeting v. Mok, 2017 ONCA 203 (CanLII), the plaintiff worked as a nurse in a small medical office. There was ongoing friction over various matters in the workplace and, during one particular exchange in which, according to the Court, the Defendant was angry, he said to the Plaintiff:
Go! Get out! I am so sick of coming into this office every day and seeing your ugly face.
At no time did the employer say that she was fired, or any other words to that effect. But her lawyer argued that in the context of a small office, those words had to be objectively viewed as terminating the employment relationship.
The Defendant sought to minimize the wording, suggesting that he had been referring to “ugliness in the office” and had encouraged everyone to go home. The Trial Judge didn’t buy that, noting that he did nothing to clarify any misunderstanding. In the alternative, the Trial Judge found that the way in which the Plaintiff had been treated on that occasion destroyed the working relationship and constituted a constructive dismissal. The Plaintiff was awarded twenty-four months’ pay in lieu of notice. On appeal, this decision was upheld.
The decision reinforces the onus on employers to behave reasonably and in good faith. Losing one’s temper and acting based on emotion can create tremendous liability, as in this case.
The Disappearing Resignation
Conversely, although a dismissal can exist even without the explicit words being spoken, explicitly saying “I quit” may not constitute an irreversible resignation. Again, employers are cautioned to avoid acting hastily. Our employment laws, and the duty of an employer to act in good faith, will often mean that hasty resignations will not be effective, and employers should not refuse to allow the individual to retract their resignation without further consideration.
In Evans v. Avalon Ford Sales (1996) Ltd., the Plaintiff worked for the Defendant car dealership for approximately thirteen years, ultimately in the role of Commercial Fleet Manager, reporting to the General Sales Manager and the owner. Apparently, he made an inventory control error which caused a delay in payment, and this led to a difficult meeting with the owner and the General Sales Manager. He experienced a stress reaction and went home, returning to work later that evening. At that time, he gave in his keys, announced that he was done, and left.
The Plaintiff had second thoughts and tried to call the owner, but his calls went unanswered. Four days later, they met and the owner berated the Plaintiff for “deserting” the dealership. The Plaintiff, who had sought medical treatment due to the stress he was suffering, asked for a medical leave of absence and produced a doctor’s note in support of his request. However, the owner ripped up the note and told the Plaintiff to get out.
Subsequently, the Plaintiff brought a wrongful dismissal claim and alleged that his resignation was involuntary and equivocal, and that the company effectively dismissed him by refusing to allow him to return. The trial judge considered the evidence and agreed with the Plaintiff. This portion of the judgment is instructive in showing how courts will assess such circumstances:
 The onus of proof that the employee voluntarily resigned is on the Defendant (Harris at 3-13 and Pacific West Systems Supply Ltd. v. Vossenaar, 2012 BCSC 1610 (CanLII) at para. 78).  The test for resignation has subjective and objective components. Did he intend to resign and did his acts and words, objectively viewed, support a finding that he resigned? (Beggs v. Westport Foods Ltd., 2011 BCCA 76 (CanLII) at para. 36).  Hill, J. in Gebreselassie at para. 43 states the following:
- A valid and enforceable resignation must be clear and unequivocal — to be clear and unequivocal, the resignation must objectively reflect an intention to resign, or conduct evidencing such an intention: Kieran v. Ingram Micro Inc., 2004 CanLII 4852 (ON CA),  O.J. No. 3118(Ont. C.A.) at para. 27; Danroth v. Farrow Holdings Ltd.,  B.C.J. No. 2674 (B.C. C.A.) at para. 8; Rousell v. Prairie Implement Manufacturers Assn.(1992), 1992 CanLII 8069 (SK QB), 44 C.C.E.L. 243 (Sask. Q.B.) at 247-9. Whether words or action equate to resignation must be viewed contextually — the totality of the surrounding circumstances are relevant to determine whether a reasonable person, viewing the matter objectively, would have understood the employee resigned: Kieran, at para. 30; Dragone v. Riva Plumbing Ltd., 2007 CanLII 40543 (ON SC),  O.J. No. 3710 (Ont. S.C.J.) at para. 3; Maguire v. Sutton,  B.C.J. No. 138 (B.C. S.C.) at para. 47.
… Viewed objectively, these facts suggest that the Plaintiff resigned. Subjectively, the evidence also supports the conclusion that this was the Plaintiff’s intention, at that moment.  However, my conclusion respecting the Plaintiff’s resignation does not end the enquiry. As Hill, J. states in Gebreselassie at paras. 49 and 50:
49 … a resignation during a spontaneous outburst in highly charged emotional circumstances can undermine its essential voluntariness: Maguire, at para. 44, 28; Widmeyer v. Municipal Enterprises Ltd. (1991), 1991 CanLII 4413 (NS SC), 36 C.C.E.L. 237 (N.S. T.D.) at 246-7. As well, in some cases, an employee’s conduct is sufficiently equivocal that it cannot be objectively construed as voluntary resignation: Widmeyer, at 247; Cranston v. Canadian Broadcasting Corp. (1994), 1994 CanLII 7408 (ON SC), 2 C.C.E.L. (2d) 301 (Ont. Gen. Div.) at 308-9. …
50 … an employee may resile from a resignation provided the employer has not relied upon it to its detriment (Kieran, at 34;Tolman v. Gearmatic Co. (1986), 1986 CanLII 1212 (BC CA), 14 C.C.E.L. 195 (B.C. C.A.) at 201), this factor is irrelevant on this record because the plaintiff maintains that he did not resign.
… On the evidence as a whole, I conclude therefore that Mr. Evans’ resignation cannot be characterized as unequivocal. The Defendant has not met the onus of proving that the Plaintiff resigned.  Had I found the Plaintiff to have voluntarily resigned, I acknowledge that he would then be entitled to argue that he was entitled to a reasonable period to change his mind and that the employer had an obligation to make enquiries…
The Court also noted that “Mr. Evans did not say that he resigned and did not write a letter of resignation to his employer. Instead, he used words such as ‘I’m done’ and ‘I can’t deal with this anymore’”.
Further, the court held that the Defendant breached its duty of good faith and fair dealings when it refused to allow the Plaintiff time to cool off and when it refused to allow him to retract the resignation. At the very least, the court found that the Defendant displayed a careless disregard for Evans, breaching an implied term of their contract.
The Bottom Line
Employers in 2017 must be extremely cautious. These are but two examples of unintended consequences created by employers acting hastily and without full consideration of the potential consequences. Contacting an Employment Lawyer prior to any such decisions is highly advised.