New Alberta “Resignation” Wrongful Dismissal Case

By: Joel Fairbrother

Published: 13 November 2023

New Alberta Resignation Wrongful Dismissal Case

Stonham v Recycling Worx Inc, 2023 ABKB 629 (Marion, J) is a new Alberta Court of King’s Bench decision where an employee was found to have been wrongfully dismissed despite the employer’s argument that he had resigned or abandoned his employment.

This case is important because it provides some direction and guidance on the meaning of “resignation” and “abandonment” in Alberta employment law.


The following were the facts summarized by the Alberta Court of King’s Bench:

  • The Plaintiff employee, Allan Stonham, worked for the Defendant employer, Recycling Worx Inc. (RWI) as a commercial truck driver
  • Stonham was injured at work and then performed modified duties. He did this for over a month, and during this time he was disciplined three times for being late for work and having failed to have filled in a PPE maintenance record over 7 months prior
  • He was then put on clerical duties for a few weeks
  • Stonham soon went on medial leave and expected to be ready to return to work September 15, 2020
  • Stonham tried to get RWI to agree to let him start as a helper prior to September 15, but they did not agree
  • Neither party actually confirmed if he was going to be working on September 15
  • Stonham was not at work September 15-17, and asked through legal counsel on September 18 to be reinstated to his position as driver
  • The employer responded later on the same day that Mr. Stonham had resigned his job because of an employment policy which stated that if an employee did not call in for 3 continuous days, they were deemed to have resigned their employment
  • The plaintiff sued for wrongful dismissal by way of summary trial
  • In the summary trial, the Defendant’s position was that the plaintiff either resigned or had abandoned his job

Analysis / Conclusion

Justice Marion found that although the employee had seen and signed the employment handbook (which contained the resignation clause) during his employment, the clause altered a fundamental term of his employment and was not enforceable in this case because (1) it was not binding on him because he had not received fresh consideration beyond continued employment for signing it, and (2) even if it would have been binding, in cases where a clause takes away a fundamental right – like the common law meaning of “resignation” – it should be construed strictly and any ambiguity resolved in favor of the employee.  With that strict construction, it was not entirely clear that the clause had even been breached.

Justice Marion went on to consider whether the employee had resigned at common law.  He concluded that he had not resigned, noting the relevant test as follows:

[77] As noted above, in determining whether an employee has resigned, the Court applies a subjective and objective test: subjectively, did the employee intend to resign; and objectively, viewing all the circumstances, would a reasonable employer have understood that the employee had resigned?  Ordinarily, there must be a clear and unequivocal act in the form of a statement of an intention to resign or positive conduct from which that intention would clearly appear […]

[78] I find on the balance of probabilities that Stonham did not subjectively intend to resign: rather, he wanted to return to work as a Class 1 driver as soon as he was able, and even sooner if RWI would give him a helper pending his full recovery from his accident. […]

[79] […] I find on the balance of probabilities that no reasonable employer would have understood Stonham to have resigned, even factoring in RWI’s evidence and arguments.

Justice Marion went on to consider whether the plaintiff had abandoned his employment, as distinct from the question of whether he resigned.  He summarized the test for job abandonment generally as follows:

[85] Whether there has been abandonment will depend on all the circumstances. The test is whether, viewing the circumstances objectively, a reasonable person would have understood from the employee’s words and actions, that she or he had abandoned the contract of employment […]

[86] […] abandonment allegations seem to arise frequently where an employee is away from work for medical reasons. Where an employee expresses an intention to return to work when they are better and there is an expected return date, courts have confirmed in several cases that the objective test for abandonment will not be met where the employee is not yet ready to return to work or where the employer has not taken any steps to clarify, or seek an update on, the employee’s expected return date […]

Justice Marion had little difficulty concluding that the plaintiff had not abandoned his job in the circumstances, on the basis that no reasonable employer would have concluded that was his intention in the circumstances.

The Court awarded a 2.5 month notice period for this employee with 3 years of service.

My Take

The determination in this case that the employee’s actions in this case were not a “resignation” or “job abandonment” were not surprising to me.  I have personally seen employers try similar tactics to get rid of an unwanted employee on more than one occasion, and it was no more persuasive to me in those cases than this one.  I have also seen several instances of employer going even further and unilaterally declaring that if an employee does not do some specific thing (such as take a different role offered), they will be “deemed to resign”.  I have always argued that these positions are without merit, and I think the Stonham decision affirms that.

One point I would like to argue in Court on the point of resignation is that it ought to be impossible for an employer to significantly change the common law definition of “resignation” in an employment policy to suit their interests, for general public policy reasons and because it – I would argue – violates the Employment Standards Code.  The reason I would say it violates the ESC is because the ESC is a set of minimum protections for employees.  The ESC caselaw determines what constitutes a “resignation” in the context of the minimum ESC protections, and that caselaw takes its definition from the common law.  In this way, the common law definition of resignation is essentially enshrined as a minimum statutory protection for employees, and any contract or policy that says otherwise should be void.  That argument was not considered in Stonham, but I hope to see or be part of a decision considering it at some point.

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