Taking A New Job Elsewhere Is Not Necessarily Resignation

By: Amanda Jacinto

Published: 12 August 2024

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Sara Consulting & Promotions Inc., operating as Sara Simply Sampling v Macburnie, 2024 ABESAB 15, is an appeal of an Employment Standards decision where an employee had been awarded termination pay. The point of contention in this matter was whether the employee was terminated or resigned when she began working for a new employer while temporarily laid off.

This case is important because the issue of whether someone has resigned or been terminated comes up sometimes and there is not a lot of law on the subject.

Facts

The following are the pertinent facts of the case:

  • The Respondent, Marlene Elizabeth MacBurnie was an employee (the “Employee”) for the Complainant, Sara Consulting & Promotions Inc., operating as Sara Simply Sampling (the “Employer”) for over 15 years as a scheduling coordinator
  • The Employee was laid off in March 2020, due to the Covid-19 Pandemic. The lay off was in excess of 90 days. During this time the Employer continued to provide the Employee with benefits
  • When the Employee’s CERB and EI Benefits expired, she began looking for alternative employment, while she continued to receive benefits coverage from the Employer
  • In January 2022, the Employee started a new job elsewhere, while still employed for the Employer
  • On March 7, 2022, the Employee disclosed to the Employer that she had started a new job. At no point during this conversation did the Employee state that she was resigning, or express any intention to quit for that matter
  • Following the telephone call, the Employer wished the Employee well on her new endeavor, asked her to return her key and terminated her benefits
  • The Employee filed a complaint with Employment Standards for termination pay and was successful
  • The Employer appealed the decision, stating that the Employee had not been terminated, but that she had resigned when she started the new job

Analysis / Conclusion

The Alberta Labour Relations Board sitting as Employment Standards Appeal body (“ALRB”), was to determine whether the Employee had resigned when she took the new job, or if the Employer terminated her employment when her benefits concluded.

In determining whether an employee has been dismissed, an objective test is applied to determine “whether the acts of the employer, objectively viewed, amount to a dismissal” as was held in Beggs v Westport Foods Ltd., 2011 BCCA 76 (“Beggs”) at para 36.

Whereas, in determining whether an employee has resigned, a subjective/objective test is applied which consists of the following:

  • whether the employee intended to resign (subjective component);
  • in view of all the circumstances, would a reasonable employer have understood that the employee had resigned and whether  the resignation was  clear an unequivocal (objective component);Carroll v Purcee Industrial Controls Ltd., 2017 ABQB 211 (“Carroll”) at para 25

The ALRB took into account the following principles from other cases:

  • Obtaining new employment (even where that new employment has been described as permanent) does not necessarily constitute an unequivocal resignation and the employer “is solely responsible for any misapprehension of his intentions and for the consequences of its reliance on its interpretation of any words that [the employee] might have said or written” (Filtervac International Inc. v Goldrick, 2020 CanLII 38302 (ON LRB)at para 17). It is also of general note that employees are not necessarily prohibited from taking on alternative employment during a layoff (nor is it a breach of good faith), so long as they remain available for recall by the original employer (SGS Canada Inc. v Holmes, 2018 CanLII 5425 (AB ESA); and
  • Where an employee does not choose the day of their final employment, it is generally inconsistent with there having been a resignation (Robinson at para 64). Moreover, an exclamation of an intention to resign at a future point may not be sufficient to be considered a clear and unequivocal resignation (Robinson at paras 44-48).

In applying the subjective/objective test of resignation to the present matter at hand, the ALRB noted the following:

  • There was no evidence to indicate that the Employe intended to resign;
  • There was no clear and unequivocal resignation: the Employee never communicated to the Employer (orally or in writing) that she no longer wanted to work for the Employer; and
  • It was the Employer’s responsibility to follow up with the Employee and to determine whether they intended to continue working for the company

Moreover, when an employee resigns, the employer has a duty to inquire:

[48] In Vi-Al Holdings Ltd. (Beaverlodge Motor Inn) v Peters2009 CanLII 26855 (AB ESA) the Employment Standards Umpire noted the employer’s sincerity in having believed the employee quit; however, the Umpire nevertheless noted (at 2):

The law requires, in this sort of situation, several requirements for there to be a termination by the employee as to quitting. First, a clear indication that, that employee has quit, a clear intention to quit, and secondly, acts consistent with the quitting. […]

As a final note, I should say that in these situations, unfortunately for the employer, more often than not, they are going to be found to carry the burden of professionalism. The employer here is very experienced and employs many staff and has over a long-time frame. There are probably actions which the employer could have taken immediately after this event to buttress their understanding of what had occurred and confirm their position in writing, thereby perhaps avoiding this sort of situation arising. The burden of professionalism can be a tremendous nuisance to a busy employer, but, unfortunately for employers, the way the law has developed in the vast majority of cases, that burden of professionalism and paperwork is going to fall squarely back on the employer.  [Emphasis added].

[49]  Similarly, in 1190805 Alberta Ltd. v Farrar2015 CanLII 28364 (AB ESA) the Umpire commented on the situation where the intention to quit was not communicated or stated:

[23] The problem here is that the intention to quit had never been communicated. It had never been stated, so for the employer to take the actions as quitting without anything further was wrong, it was inappropriate. The onus remained on the employer to exercise a duty of professionalism, it is up to them to ascertain that the employee is quitting and that under the circumstances they can confirm it in writing and document it to ensure that it occurred in this fashion.  [Emphasis added].

Given the lack of a clear and unequivocal resignation, the ALRB ultimately determined that the Employee did not resign, rather, she had been terminated when the Employer ended the benefits, as such conduct viewed objectively amounted to a termination

My Take

This case was quite interesting to me, as a large portion of the caselaw surrounding resignations concerns situations where the employee quits in the heat of the moment. This case was quite different, as at no point did the Employee resign/quit, rather, the Employer assumed a resignation had occurred once the Employee started a new job.

This case is a good reminder for employees to steer away from making assumptions and instead to ask questions and obtain clarity from their employees. Especially when it comes to employee resignations.

Bow River Law provides these regular legal blog articles for the purposes of legal news, legal education and research for the public and the legal profession.  These articles should be considered general information and not legal advice.  If you have a legal problem, you should speak to a lawyer directly.

Amanda Jacinto is an employment and labour lawyer at Bow River Law in Calgary.