Can a termination be treated as a resignation?

Recently the workout chain Goodlife Fitness made the claim that hundreds of employees who did not respond to an email survey by their deadline had resigned and are not owed owed severance.

GoodLife Fitness first emailed its fitness instructors via their work email around January 27th, asking employees to indicate their interest in returning and requesting a response by February 6th. Employees were reminded via email on February 1st. On February 4th, they received another email indicating that a failure to reply would be interpreted as a lack of interest in returning “at this time”. On February 8th, the deadline to reply was extended by one day. Around February 15th, Goodlife employees were notified that their failure to respond was a “voluntary withdrawal from employment with Goodlife” and their employment was terminated, without any severance.

What is a real resignation?

A genuine resignation is made voluntarily by an employee, and it must be clear and unequivocal. An employer cannot force employees to resign. The employee must clearly communicate their intention to resign to their employer. The employer’s acceptance of this resignation, sometimes in writing, often follows to show that the employer and employee have mutually accepted the resignation and the end of employment.

WATCH: Lior Samfiru, an employment lawyer at Samfiru Tumarkin LLP, discussed forced resignations on an episode of the Employment Law Show.

Can workers who don’t reply to emails be considered to have resigned?

It is unlikely that workers can be deemed to have resigned for not responding to an employer’s email, but the facts of each case need to be considered to make a final determination. Goodlife employees did not communicate that they intended to resign or that they understood any lack of response to Goodlife’s email to amount to a resignation. All that was communicated to employees was that their lack of response would be deemed as disinterest in returning “at this time”, but not an outright lack of interest in returning at a later date in the future.

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What is job abandonment?

Job abandonment requires a clear indication that the employee has no intention of returning to the workplace, which arguably did not exist in this case. Goodlife could argue that the survey questions were fundamental to their employees’ employment and that a failure to respond would equate to job abandonment. However, this would likely require that Goodlife employees received and understood Goodlife’s email – most importantly, that they understood the consequences of not replying.

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Can I get severance if I quit?

Goodlife would first need to prove that the employees in question actually received this email prior to their failure to reply. Given the email was sent almost exclusively to work accounts of temporarily laid-off employees, it is very likely that employees did not see the email prior to the response deadline. It appears Goodlife made inconsistent attempts to ensure that temporarily laid-off employees received the email, whether through follow-ups on personal email accounts or phone numbers. Goodlife’s actions, and their timing, could amount to bad faith on their part.

Goodlife employees also attempted to communicate to Goodlife that they didn’t receive the email in time, had intended to respond, or that they did not understand the employment status and severance implications of not responding. On this basis, it would be difficult to establish that Goodlife reasonably inferred that the Goodlife employees intended to resign, or abandoned their positions through their lack of response within the 10-day period.

Can employers claim an employee resigned to avoid paying severance?

A recent Alberta decision, First Choice Collision v Talbot, confirmed that an employer cannot claim an employee resigned because the employer believes that was the employee’s intention. If an employee clearly communicates a genuine resignation to their employer, the employee would not be owed severance at the end of their employment, as they are voluntarily quitting their job.

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• Maximum Severance Pay in Alberta
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What recourse does an employee have in this situation?

Employees should contact an employment lawyer at Samfiru Tumarkin LLP, who can advise what amount of severance may be owed. An employment lawyer can also help an employee to pursue severance, including wrongful dismissal claims and employment standards complaints.