EE Constructively Dismissed, Didn’t Resign, No Just Cause
G Force Oilfield Services Inc. v Winter, 2022 CanLII 126888 (AB ESA) (Johnson) is an Employment Standards Appeal case where the employee was successful in getting severance despite several challenging legal positions taken by the employer.
This case does not change the law, but there are several interesting areas of law intersecting together.
The following are the pertinent facts found by the Alberta Labour Relations Board:
- The complainant employee worked for the employer for about 6 years when the relevant events took place, and for the last several years held the position of Field Supervisor
- The employee had one written warning on his record for an incident 4 years prior to the relevant events
- The employee had been told to clean a large vessel a certain way and by a certain time by his supervisor. Someone at the Husky site indicated there was a better way to clean the vessel, so the employee chose to do it differently than his manager had told him to do it. When the manager came to the site he was angry it had not been completed. The employee left the site angry and drove home
- The manager messaged the employee to tell him he was being suspended for a week and needed to turn in his truck. When the employee got the message he was angry. He dropped off his truck at the shop, and the evidence was not clear if he said he was quitting to the administrative professional at the shop or not
- After that, the employer issued his Record of Employment (“ROE”) to indicate that he “quit”. Within 24 hours of receiving his ROE, he messaged the employer to say he did not quit
- The employee argued he had been constructively dismissed when he was placed on suspension; the employer argued he had just resigned, and that the employer had just cause for dismissal
Analysis / Conclusion
The ALRB determined that the unpaid suspension was a constructive dismissal in the circumstances, as follows:
 As there was no indication that a suspension was authorized in the Respondent’s employment contract, the Appeal Body concludes that the suspension was a unilateral change to the employment contract.
 The next question is whether the Respondent could reasonably conclude that the suspension was a substantial change to an essential term of the employment contract. In addressing this issue, the Appeal Body must consider whether the suspension was both reasonable and justified in the circumstances. The following factors are relevant to its analysis:
the direction from Miller that the Respondent was not to attend at the Tucker Lake site created a legitimate business reason for the Appellant to deny the Respondent work at that site;
however, since the Appellant had other work at other locations that it could assign the Respondent to work at, Miller’s direction was not sufficient to deny work to the Respondent;
the suspension was for a significant period of time (one week);
the suspension was without pay;
the Respondent was advised to return his work vehicle;
the Respondent was advised that the Appellant would juggle the remaining workers around; and
the Respondent was directed to keep the suspension private.
 The Appeal Body concludes that the suspension was not reasonable and was not justified in the circumstances. As such, the Appeal Body concludes the Respondent was constructively dismissed.
The ALRB concluded that the employee had said he was quitting, but that it was not a resignation in the circumstances:
 Previous employment standards appeal decisions recognize that an employee may utter comments in the heat of the moment that may be indicative of quitting when in reality the employee does not intend to quit. In such situations it is incumbent upon the Employer to confirm with the employee if the employee truly intends to quit. […]
 … the Respondent’s comment was made in the heat of the moment and that the Respondent did not actually intend to quit:
the Respondent had been under stress at the workplace to have the turnaround completed in a timely fashion;
the Respondent had had a heated conversation with Gervais approximately one hour before the September 17, 2020 text message;
Blize described the Respondent as being upset;
the text message did not explain why the Respondent was suspended;
within 24 hours of receiving the 2021 ROE the Respondent protested that he had not quit;
in January 2021 in text messages with Gene Gervais, the Respondent continued to assert he had not quit; and
the Respondent’s statement was made to a payroll administrator and not to someone who supervised him.
 The fact that the Respondent quit in the heat of the moment and then promptly denied this made it incumbent on the Appellant to confirm his intent The Respondent’s comments to Blize reflect that the Respondent disagreed with the one-week suspension, which in turn indicates that the Respondent viewed the suspension as inappropriate action on the part of the Appellant. Accordingly, the Appeal Body concludes that the Respondent did not quit.
Finally, the ALRB concluded that there was no just cause for dismissal. Although the employee did not clean the large vessel the way his manager had asked him to, he had conflicting information from someone at site for when the cleaning was actually to take place. The circumstances were not clear enough to be considered insubordination.
I like this case because there were several arguments on both sides that had some potential. The result is an interesting mix of employment law issues.
I was not surprised by the finding that the comments he made about quitting were not a resignation, but I was a bit surprised that the employee’s decisions on the method and timing of cleaning the vessel were not considered insubordinate to some degree.
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