A recent, rather colourful, case out of British Columbia serves as a
cautionary tale for employers in respect of equivocal resignations by
employees, and provides some guidance to employers on how to respond to a
resignation “bluff” from an employee.
In Haftbaradaran
v. St. Hubertus Estate Winery Ltd., 2011 BCSC 1424, a Kelowna
winery learned the hard way how not to respond to an equivocal
resignation from its winemaker. The
Court in this case found the plaintiff winemaker to be an emotional
perfectionist and prone to “hissy fits”.
Indeed, in a notable passage from the Reasons for Judgment, the Court
expressly agreed with the employer’s assertion that the employee was a “pain in
the ass”. Following a miscommunication
between employer and employee respecting a day off, the owner of the winery and
the employee had a tense and emotional meeting in which the employee raised –
without warning or prior context – a litany of complaints and accusations
against his employer, some entirely illogical.
This unfortunate meeting escalated to the point where the employer
swore, the employee broke down in tears, and the employer advised that if the
employee was unhappy with his job, perhaps he should look for another one. In response, the employee took out his keys to
the winery facilities and invited the owner to fire him. The owner responded by telling the employee
to get out of his office. The employee
smiled, said “Good luck making wine”, then gathered his personal effects and
left the winery property.
Now, keep in mind that the trial judge held that nothing that had occurred
to this point constituted a dismissal of the plaintiff. However, he also held that nothing amounted
to a resignation either, echoing the standard test for resignation:
…the objective test
of the disinterested and reasonable observer. Would such an observer conclude
from the employee’s words and actions that the employee had irrevocably quit
his or her job? Would that observer conclude that the employer had accepted the
resignation as an end to their relationship?
When an employee is ambiguous in his or her words and conduct with respect
to resignation, what is an employer to do?
Pursuant to this case, it is clear that what the employer should not
do is simply accept the employee’s conduct as a resignation, and proceed
accordingly. In this case, the employer
responded to the emotional meeting and the employee’s conduct by sending him an
e-mail that presumed he would no longer be working for the winery, and asked
whether he would be prepared to stay on for a 4 week period to “clean up all
the loose ends” caused by his “departure”.
The Court held
this e-mail to be a termination of the Plaintiff’s employment. It further held that the employer’s communication
to the Plaintiff should instead have referred to the meeting, acknowledged the
ambiguity of the parties’ positions when the meeting ended, and invited the
plaintiff to return to the winery to “iron out their differences”. A reasonable
observer, knowing what had passed between the parties earlier in the day, would
have viewed the e-mail as a communication of the defendant’s decision to no
longer put up with the plaintiff’s behaviour. The e-mail terminated the
plaintiff’s contract of employment with the defendant.
What can be
gleaned from this case is that in situations wherein an employee’s conduct
appears consistent with a resignation, but there is doubt as to whether it
meets the objective test, an employer would do well to resist falling for such
a “bluff” from its employee by proceeding to process a resignation or otherwise
communicate the acceptance of a resignation.
The prudent course is to seek clarity from the employee through an
invitation to meet and discuss the issues. To do otherwise runs the employer a
risk of a finding of wrongful termination in the absence of an objectively
clear and final resignation.
