What happens when a person quits his or her employment? Typically, quitting is a voluntary act of the employee. Perhaps a better job is found, perhaps a move to a different city is in the works, perhaps marriage or winning the lottery or some other event occurs that leads to the employee giving notice of the end of the employment. These are examples of the classic case of voluntary resignation or quitting. Normally, a voluntary resignation is effective in terminating the employment at the employee’s behest, leaving the employee without the typical bundle of rights a wrongfully dismissed employee has. A voluntary resignation is a complete defence in favour of the employer to any wrongful dismissal claim made by the employee.

Obviously then, because it is a complete defence, it is not uncommon to see employers who think they have the facts to do so and, sued for wrongful dismissal by a departed employee, attempt to argue that the employment ended via a voluntary resignation of the employee as opposed to a dismissal by the employer. After all, the burden of proving that a dismissal occurred rests with the employee, but the burden of proof that a voluntary resignation occurred is on the employer. He who alleges must prove. The battle is on.

But there arise situations where the quitting or resignation is anything but voluntary on the employee’s part. For instance, the following are common patterns of involuntary resignation.

The employee suffered some trauma and, in a state of temporary emotional pique or heat of the moment, utters the words “I quit.” In a more sober moment, the employee attempts to recant the words, but the boss seizes the words and holds them against the employee and ignores the employee’s recanting, for whatever reason, and the employment ends on that basis; or the employee issues words or reacts to something ambiguously, but the boss takes it as a resignation and acts on it; or, as happens on occasion, the boss confronts the employee with something, threatens dismissal for cause, but offers the employee the chance to quit voluntarily so as to avoid the mark of dismissal. The employee, so coerced, “resigns.” An employee in these sorts of circumstances may attempt to claim, as part of a wrongful dismissal lawsuit, that a resignation was involuntary and therefore should not count as the means to end the employment.

In termination circumstances that are unclear because the employee is claiming a dismissal due to an involuntary resignation, and the employer is claiming a voluntary resignation and thus no dismissal, the court will look at the overall circumstances of the parties at the point of termination, and may also be informed by post-termination circumstances. A simple example of post-termination circumstances are where the employer fills out a record of employment that indicates a dismissal. This would be inconsistent with a resignation.

A classic legal decision on the topic of resignation is found in Assouline v. Ogivar, a B.C. case from 1991. In that case, the employee complained that he had not received commission from a large sale, and a heated discussion ensued between the employee and the employer. In a moment of frustration, the employee exclaimed that he could not continue to work for a company that did not honour the employment contract. The employer took this statement as a resignation, locked the employee out of his office and advised him his resignation had been accepted. The court examined the surrounding circumstances, including the verbal dispute that erupted and the fact that a number of employees had the same problem and were discussing it, and concluded that there was no voluntary resignation, rather it was a statement of potential future options.

The test the court uses in resignation cases is an objective one. Given all the surrounding circumstances, would a reasonable person understand by the employee’s statement that he had just resigned?

In another recent case, a 20-year employee suddenly came under investigation for alleged inappropriate behaviour, and the boss confronted the employee and told him he was going to be dismissed tomorrow for cause based on the investigation unless he chose before then to resign. The boss told the employee it was in his best interests to resign, to avoid the embarrassment of a termination for cause. The boss also relieved the employee of his duties as of that moment. The employee resigned and the next day circulated an e-mail entitled “happy resignation day,” mocking the circumstances of his “resignation.” The court had no difficulty in finding the resignation was a coerced one and therefore not voluntary. Instead, the court found a dismissal had occurred. The decision to terminate employment had already essentially been taken by the employer, and the resignation was simply a ruse, a convenient escape for the employer.

A resignation, to be effective in ending the employment in a way that allows the employer to escape liability for a dismissal, must be a voluntary resignation in all the surrounding circumstances.

What happens when an outside party interferes with a contract of employment between employer and employee? This question was recently addressed in a Supreme Court judgment.

The employee was the chief administrative officer of the employer, and had been so for six years. The employer was a local self-governed association that had links to a larger provincial body. It was the employer, the local association, that had specifically hired the employee at the inception of the employment. The larger provincial body had had nothing to do with this employment until the time of the termination.

In the mind of the employer, issues arose as to the performance of the employee. To address the employment issues, the employer convened a meeting of its board of directors and invited members of the larger provincial body to attend and give input. As a result of the board meeting, a decision was made to discipline the employee by suspending her for a month with pay. A letter was delivered to the employee to this effect. The letterhead of this correspondence was that of the larger provincial body, not that of the employer.

A month into the suspension, the board of the employer convened again and made a decision to terminate the employment and to base this termination on allegations of just cause, thereby allowing the employer to escape the requirement of giving reasonable notice of the termination.

The termination letter that was delivered by the employer to the employee was written on the letterhead of the larger provincial body, not the employer.

Predictably, there was a lawsuit about all this. The employer failed to prove just cause. In fact, the court found there was scant basis for the allegation of just cause, and the employee won her wrongful dismissal lawsuit against the employer.

Turning to the matter of the third party, the larger provincial body, and its role in the termination, the court found the larger provincial body had unlawfully interfered with existing contractual relations and was thereby liable for damages in this wrongful dismissal, together with the employer. In fact, the court went further and also found a common employer to exist, being the combination of the local association and the larger provincial body, based on the fact the larger provincial association essentially took control of the dismissal of the employee. The court found the larger provincial body jointly liable together with the employer for the damages and the wrongful dismissal of the employee.

This is not the first case of this sort. The legal principle has existed in common law as far back as 1843, and has been honed and developed by common law courts ever since.
A third party to a contract of employment between an employer and an employee can be held liable for unlawful interference with contractual relations that causes damages to the employee. Where a third party interferes such as to cause the employment to be terminated against the will of the employee and in a way that constitutes a wrongful dismissal, the employee has suffered damages and can pursue the third party for these damages.

What is required? First, there must be a valid and enforceable contract. Second, the third party must have knowledge of the existence of the contract. Third, the contract must be breached through the intentional actions of the third party, what the law calls a procurement of the breach. Fourth, this interference must be wrongful; there cannot be a lawful excuse for it. Fifth, the employee must have suffered some sort of damages. Where the dismissal is a wrongful dismissal, the employee will certainly have suffered damages, fulfilling this fifth requirement.

In fact, it is possible for the employee, wrongfully dismissed by the employer through the procurement of a third party, to sue the employer in contract for the dismissal, and the third party for unlawful interference for any additional damages beyond those in contract. Where the employee can prove an actual loss suffered in addition to contract damages, the third party may be liable.

It should be noted, a director of a company who gives reasonably founded input about an employee that results in a dismissal will not be held liable for that because the law considers it is part of his or her duties as a director.

A note of caution. Contracts are two-way streets involving employees and employers. Where outsiders unlawfully interfere with the contract, the injured party to the contract may have a claim in damages against that outsider.

This could just as easily work in favour of the employer in situations where an outsider induces its employee to end an employment contract in a way that causes damages to the employer. Food for thought for industry competitors and headhunters.

So what is to be gleaned? First, the employment relationship remains one of master-servant even in these modern times, and the master is entitled to be respected. Second, it is wise to keep one’s own counsel and, at the least, avoid putting words in writing that may come back to hurt you. If you are having difficulties in the workplace, obtain the guidance of an employment lawyer. Third, end runs around the boss are never a good idea if you plan on a long career.

When does expressing workplace dissatisfaction with one’s boss turn into just cause for dismissal?

Two decisions of the BC Supreme Court issued 10 days apart tell us something about the answer.

In the first case, the employee had verbally criticized his boss, the CEO, in the presence of other employees. The employer was a small company with five employees and an investor. The employee had criticized the CEO in front of the investor when the investor was considering a controlling investment that was necessary for the survival of the employer. The employee, in the presence of another employee, told the investor that he thought the CEO was not fulfilling his role as chief executive officer and had not delivered in time of need. The investor, because he was part of the operation, had already formed his own conclusions about the CEO that happened to be the same as those stated by the employee.

While the employee clearly criticized his boss among fellow employees and important clientele or investors at a particularly sensitive time, it was held that the criticism was not sufficient for just cause. The co-workers routinely exchanged discussion, the criticism of the boss came as no surprise to the employees or the investor, differences of opinion were bound to be stated and overheard by others in a small office, and since the investor had already formed a similar opinion of the CEO to the one stated by the employee, it could hardly be said the investor refused to increase his investment based on what the employee said.

In the second case, the employee went on medical leave because of a situation at work involving her boss. While on medical leave and without first speaking to her boss, she wrote an e-mail to the board of directors of the employer that was highly critical of her boss.

In the e-mail, she stated that she “has been compromised in every regard and cannot function in the current climate,” her “position … has been compromised by [her boss’] unilateral actions,” her boss had “become irate with” her, she could accordingly “no longer take responsibility for the work of others since [her] hands have been tied” by her boss, she accused her boss of having a “stated intention to violate a client’s right to confidentiality, this in turn compromising the confidence I had built with my client,” and so on. The general gist of the e-mail pointed to her boss’ inability to manage and his perceived serious character flaws.

The employer took this e-mail to be a resignation, provided just cause for termination, chose to accept it as a resignation, and brought the employment to its end.

The court rejected any idea that the e-mail was a resignation, ruling that clearly the employee was crying out for help and wished to provoke further dialogue, thus supporting an intent to continue working. However, the court found that the content of the e-mail constituted such severe criticism, and that this criticism was levied in a way that was designed to undercut the boss in the eyes of the board, that it constituted just cause for the dismissal. The court said the content and the method of delivery of the e-mail destroyed the employment relationship. The court found that it was incumbent on the employee to first have gone to the boss to attempt to work things out if possible before she projected her conclusions to the board. To fail to do so destroyed the working relationship between her and her boss. The court also found the content of the e-mail to be disrespectful, pejorative and unnecessarily inflammatory. Both the content of the e-mail, and the method used to deliver it, constituted just cause, each on their own.

So what is to be gleaned? First, the employment relationship remains one of master-servant even in these modern times, and the master is entitled to be respected. Second, it is wise to keep one’s own counsel and, at the least, avoid putting words in writing that may come back to hurt you. If you are having difficulties in the workplace, obtain the guidance of an employment lawyer. Third, end runs around the boss are never a good idea if you plan on a long career.

A recent decision of the BC Court of Appeal makes for some interesting reading.

The case involved a plaintiff employee who was 66, had 18 years of service and who was employed as a receptionist. She also earned additional money doing janitorial work for this employer. Although she was 66, she had no plans to retire, hoping to work to age 71. Because there was no compulsory retirement age rules with this employer, the employer had assured her she could do so.

The employer perceived it needed shipping backup for good business reasons. The office manager felt the plaintiff should be asked to train for shipping duties, and asked the plaintiff to expand her duties by learning the shipping function and becoming the backup shipper. This involved complexities and skills that the plaintiff did not possess and would have trouble learning. The employer knew this. The office manager made it clear that if the plaintiff refused the new duties, another person may be hired who may also have to take over some of her accounts payable and receivable duties in order to have enough work.

The plaintiff was placed in a training program and received training and tried the new duties and found she could not perform them. She went to the office manager but was led to believe she could not go back to her old duties without the shipping duties training. The plaintiff approached the president, indicated she was unhappy and that, since she could not perform the new duties, she felt she had no choice but to retire, although she did not want to do so. The president made no attempt to challenge her thinking or dissuade her from retiring. He did not offer her a return to her duties without the shipping duties. He encouraged her to retire, offering her what might be viewed as some incentives to do so. He offered to pay her to the end of the year, and to continue the janitorial work she provided to the office for another year. Thus, the plaintiff resigned under these conditions.

The plaintiff sued for constructive dismissal. The plaintiff felt she had been given no choice, that either she had to learn the additional duties as backup shipping clerk, or the employer would take steps to hire a new person who would take over part or all of her work.

The employer defended on the basis that the plaintiff voluntarily retired, and there was only training and no change to duties and no hiring of anyone who took over the plaintiff’s duties.

Based on case law that states the legal test for determining whether a change is fundamental (and therefore amounting to a constructive dismissal) is an objective test and not based on the plaintiff’s feelings or belief, the employer asserted that no change was implemented, and the plaintiff’s subjective feelings or belief that a change had occurred is not relevant.

The court rejected this defence, pointing to the silence of the president when the plaintiff put forward her issues and mentioned retirement. The court said this silence affirmed the assessment the plaintiff made that she had no choice, was correct. The court concluded that the added duties constituted a fundamental change to the employment contract, and since the plaintiff had no choice as to whether to accept them or not, there was the necessary objective ingredients to support a constructive dismissal.

This case is interesting because the constructive dismissal overcame the fact of retirement, and overcame what was clearly the subjective conclusions of the plaintiff based on input she collected from the office manager and the president. Some of that input was the silence of the president gathered after the point in time the plaintiff has indicated she will retire. Based on the input, she concluded she had no real choice in the matter, and thus opted to retire in her meeting with the president. Once she mentioned retirement, the entire discussion took a different tack. This is a fact pattern somewhat lacking in the objective certainty usually necessary for constructive dismissals.

This case is best viewed as a fairness case. The plaintiff, obviously needing to continue to work and being at the low end of the pecking order, suffered from changes that she did not ask for and clearly could not perform, through no fault of her own.

The court felt the result of the steps taken by the employer caused the plaintiff to lose a job she planned on continuing. The fact the employer did nothing to correct this unfairness when it had the chance, something it could easily have done by allowing the plaintiff to revert to duties she could do and had done, cemented the court’s decision to act to replace an unfair result with a fair one.