This will be a 4-part article series that points out crucial aspects of identifying when an employee has been wrongfully dismissed. Our goal is to teach you to recognize when the termination of your employment is unjust and assist you in fully understanding your employee rights.
In Part 1 of this series, we’re going to distinguish between termination and resignation.
An employer told his employee to “go home” after they got into an argument over scheduling.
They were mostly on good terms and each considered the other a friend, but they were known to get into the occasional squabble, as friends often do.
The employee left but this was not the first time this happened. They had gotten into similar arguments before and the employee had been told to go home then, too; however, the employee always returned to work as scheduled.
But this time, things were different.
A week passed by and the employee never showed up. Did he quit? Or, was he fired?
At first thought it may seem as though it is very easy to tell the difference between getting fired and quitting a job. However, the reality is that it is often not as straightforward.
So how does one tell the difference?
The Facts – Case of Beggs v Westport Foods
To answer this question with a real life example, we need not look further than the case of Beggs v Westport Foods, 2011 BCCA 76.
Beggs is currently the leading authority on this question in BC, and was recently relied on in the BC Supreme Court judgment of Coutlee v Apex Granite & Tile Inc, 2020 BCSC 315.
Ms. Beggs had been working in the meat department at a Westport Foods grocery store for about 10 years when her home was destroyed in a fire on February 18, 2009. After her home was destroyed, Ms. Beggs phoned her supervisor and advised that she would not be returning to work for a while, although she was scheduled to work four shifts per week for the next three weeks.
She did not think much of it, as she had taken two prolonged absences from work in the past, but always had a job when she returned.
Her employer tried calling her twice during the week immediately following the fire, but found that Ms. Beggs’ phone was disconnected.
No further attempts to correspond were made by either party.
Ms. Beggs dealt with depression and anxiety during her absence as a result of the mental distress caused by her home burning down, but her employer did not know this.
She paid a visit to her family doctor to obtain a note so that she could apply for disability employment insurance, and the note stated that she was unfit to return to work and would be reassessed at the end of May.
Later that day she phoned in to work to see if she could be issued a Record of Employment (“ROE”) reflecting sick leave, and was advised that an ROE had already been prepared for her a couple weeks earlier.
She then went to the store to pick up her ROE and received an envelope. When Ms. Beggs opened the envelope, she found enclosed an ROE stating that she had quit her job, along with a final paycheque. Ms. Beggs was devastated.
Despite what it said on her ROE, it is clear on the facts that Ms. Beggs never intended to quit her job.
However, it is also true that the employer did not hear back from Ms. Beggs regarding a return date for almost two months. But Ms. Beggs’ employer also made very little if any effort in following up with her to get the necessary information to conclude that she had quit working for them… So, did they actually fire her?
For better clarity, the court in Beggs devised legal tests for determining when an employee has quit their job (or, “resigned”) and when an employer has fired (or, “dismissed”) the employee.
If the employee quit, the court must find that the employee both intended to quit and that their words and acts, viewed objectively, support the conclusion that they quit.
If the employee was fired, the court must find that the employer’s acts, viewed objectively, support the conclusion that an employee was fired.
Objectively, it sounds reasonable that one would check in with their employer more than once in a month. But also, Ms. Beggs’ house had burnt down and she was dealing with mental health issues from this traumatic event, and she had medical evidence to back this up.
The employer did not accept Ms. Beggs’ medical evidence even though it was confirmed with a doctor’s note. Instead, they characterized her anxiety and depression as an “alleged medical condition,” and the court took exception to this.
This all proved to somewhat mitigate Ms. Beggs’ duty to correspond with her employer. And it may have been different if Ms. Beggs had found employment elsewhere for example, as this may have shown an intention on her part to move on from Westport. However, during that time, Ms. Beggs was just trying to get her life back together, and fully expected to return to her job at the end of it.
In the end, the court held that Ms. Beggs did not quit her job – she was fired, or, wrongfully dismissed.
Accordingly, Ms. Beggs was entitled to compensation as a result of being wrongfully dismissed from her job.
In order to avoid a situation like the one in Beggs, employees and employers need to keep the lines of communication open with one another. The more they communicate, the easier it is for them to understand each other’s intentions.
And, as we now know, determining if an employee has resigned or whether they were terminated is realized by the intentions of each party, coupled with their actions.
In Part 2 of the Wrongful Dismissal Series, we will explore the different circumstances in which an employee is fired and becomes entitled to compensation.
The preceding content is for informational purposes only and does not constitute legal or professional advice. To obtain such advice, please contact our offices directly.