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Employer Not Allowed to Play Dumb on Resignation
First Choice Collision Ltd. v Talbot, 2022 CanLii 6688 (AB ESA) is a new Alberta Employment Standards Appeal decision decided by Vice-Chair Ayla Akgungor.
The appeal tribunal in this case rejected the employer’s argument that the employee had resigned and was therefore not entitled to statutory severance under the Alberta Employment Standards Code.
Below are the pertinent facts found by the appeal tribunal:
- The employee worked on the truck paint team of the employer shop
- During the last months of the employee’s employment, the employer was having performance issues with the employee and had given him a warning
- The employer’s business was slowing down, and the employee had much less work to do than previously. The employee was complaining about this. At one point he asked if he was being fired or if he would be laid off, given that there had been no work available for some time
- Usual practice for employees to get work was to come in to the shop every morning. However, the slow down in work resulted in the employee being told not to come in on several occasions by text. The employee then indicated he would “check in tomorrow” to see if there was work, which he did (there was none), and the employer said they would let him know if work became available. The employee checked in on a few occasions after that and was told there was no work on those occasions
- The employer had suggested some alternative work doing a different job for them for 5 hours per day, but did not provide substantive details of what that work would be. This alternative work was rejected by the employee
- The employee asked the front desk to issue him a Record of Employment
- The employer claimed that the employee knew that if he wanted to get work he needed to come in to the shop in the morning, but he stopped doing that
- The employer took the position that the employee had resigned his employment
Analysis / Conclusion
The appeal tribunal noted that in order for a resignation to be binding on an employee, it must be “clear and unequivocal”.
The appeal tribunal found that it was not unreasonable for the employee to reject the offer of work in a different position, and that it was not an indication that the employee no longer wished to be employed.
The appeal tribunal went on to find that there was no subjective intention on the part of the employee to quit, and it was objectively unreasonable for the employer to conclude that the employee had quit, reasoning as follows:
 Objectively, the Appeal Body finds that it is not reasonable to conclude that the Appellant quit. While he did request the ROE, he was clear in his earlier text message of January 14, 2019 that he felt an ROE would be appropriate given the lack of work. In the circumstances, the Appeal Body does not view the request for an ROE as an indicator that the Respondent wished to quit his employment. He was not receiving work from the Appellant and simply wanted appropriate steps to be taken as a result of the lack of work. Further, as described above, the Appeal Body finds that it was unreasonable for the Appellant to conclude that the Respondent’s failure to attend at the work site every morning and his rejection of the maintenance work were indicators that he no longer wanted to work for the Appellant.
It is unfortunately not uncommon for employers to argue along similar lines to those they argued in this case. Employers are always looking for ways to avoid paying severance, and if the employee resigns (except in constructive dismissal cases), then the employer does not normally owe them severance. Employers are sometimes, frankly, dishonest in what they “understood” about an employee’s intention to resign, and at other times they are willfully blind.
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