Employers can’t claim unsubstantiated resignation to avoid paying severance

First Choice Collision Ltd. v. Talbot

First Choice Collision Ltd. v Talbot confirms that for a resignation to amount to an employee not being owed severance, it must be clear and unequivocal that the employee has quit. Where there is no direct evidence the employee has quit, an employer cannot just baselessly deny severance because it thought the employee intended to resign.

Overview of the case

Mr. Talbot worked for First Choice Collision Ltd. on their truck painting team. In the final months of Mr. Talbot’s employment work had slowed considerably, and his supervisor routinely and repeatedly texted him not to come in because no work was available.

Despite his employer hiring another employee for the truck paint team, and Mr. Talbot consistently following up over several weeks, he was continually turned away due to supposed lack of work. Mr. Talbot took issue with this to the point of asking whether he was going to be temporarily laid off or terminated and requesting a Record of Employment.

Throughout this period Mr. Talbot’s employer had provided some warnings to him regarding his performance. The company also suggested alternate work for Mr. Talbot, although no written offer was ever made. The alternate role would have been quite different from his original position and duties, and he would only have five guaranteed hours of work per day. Mr. Talbot rejected the alternate employment. Mr. Talbot’s employer eventually claimed that due to his failure to come into the shop, he had resigned from his employment.

The Appeal Tribunal’s decision

The Alberta Appeal Tribunal found that the employer had condoned the text messages as a way to communicate with Mr. Talbot about work availability and at no time communicated to him that he needed to attend the shop to get work, nor were any disciplinary measures taken against him for his lack of attendance. Mr. Talbot’s supervisor even told him he would “contact him if any work came up”. The Appeal Tribunal found that Mr. Talbot reasonably understood he didn’t have to attend the shop to get work, and his lack of attendance did not signal any intention to resign, particularly as he was reaching out for work availability routinely.

The Appeal Tribunal also found there was painting work available that could have been offered to Mr. Talbot rather than the alternative work suggested, and Mr. Talbot’s rejection of this alternate work did not amount to resignation, especially since no written offer was made.

Finally, the Appeal Tribunal determined that after about one month of not being assigned any work, it was not unreasonable for Mr. Talbot to inquire whether he was being laid off or fired, and simply asking the question or asking for a Record of Employment to indicate the break in his employment, did not signal an intention to resign. Mr. Talbot was found to be entitled to severance.

Lessons for employees

An employee can’t be forced to resign

Your employer cannot force you to resign. The decision to leave your employment is yours to make, and yours to communicate clearly to your employer. In recent months, Samfiru Tumarkin LLP has seen an increase in employees who are seeking our help because their employers are claiming that they have resigned from their positions and are therefore not entitled to Alberta severance pay.

Discuss your options first

Be aware that quitting your job eliminates your entitlements to severance, so consider leaving your role carefully, and reach out to an employment lawyer to discuss your options before doing so.

Lessons for employers

Dangers of stringing along employees

This decision serves as a warning to employers about the dangers of stringing employees along by denying them work, while simultaneously refusing to terminate their employment and pay severance.

Where employees like Mr. Talbot are simply seeking clarity on their employment status and asking that the appropriate steps be taken to acknowledge their employment situation, claiming that this amounts to a clear resignation is unlikely to hold up in court. Severance will likely be owed to the employee, and employers could be exposing themselves to extensive costs and damages implications through this kind of conduct.

Get a resignation in writing

If an employee signals their resignation, a best practice is to get their resignation in writing to show unequivocal proof that the employee in question has actually quit their job.