Employer failed to recall long-term worker based on misunderstood phone conversation
The Supreme Court of British Columbia has ruled in favor of a 64-year-old worker who claimed wrongful dismissal after his employer failed to recall him from a COVID-19 layoff, believing the employee had resigned during an ambiguous phone conversation about retirement.
The case centered on a May 2020 telephone call between the worker and his employer of 34 years, during which retirement was allegedly discussed.
The employer interpreted the worker's statement that he "might as well just retire" as a formal resignation, while the worker maintained he was simply inquiring about his return to work timeline.
Long employment relationship ends in dispute
The worker had been the sole employee of a small draft beer equipment servicing company since 1987, earning approximately $29,000 annually in part-time work.
When COVID-19 restrictions shut down the hospitality industry in March 2020, the 63-year-old father of three young children was temporarily laid off along with the rest of the industry.
During their first contact since the layoff on May 31, 2020, the business owner claims the worker told him he was moving to Langley and "might as well just retire."
Despite being "shocked" by this alleged news, the employer admitted during cross-examination that he asked no follow-up questions and made no changes to the worker's employment records.
Court finds no clear resignation
In this case, Justice Marzari applied the established legal standard from Beggs v. Westport Foods Ltd., which requires a "clear and unequivocal act" for valid employee resignation.
The court found that even if retirement was mentioned, the worker's alleged words fell far short of this standard.
"There is no evidence of such a clear and unequivocal act," Justice Marzari stated. "With words as ambiguous as [the worker's] were alleged to have been, it was incumbent on [the company] to inquire further as to [the worker's] intentions, and to follow up in a timely way to confirm that information."
The court noted that the worker continued receiving government benefits through 2021, while the employer made no effort to update employment records or clarify the situation.
Statutory violation triggers wrongful dismissal
Under COVID-19 regulations, the maximum temporary layoff period was extended to 24 weeks, ending August 30, 2020.
When the worker wasn't recalled by this deadline, the employer automatically triggered constructive dismissal under the Employment Standards Act.
The court ruled the dismissal was wrongful, as it was based solely on the employer's incorrect belief that the worker had resigned.
However, damages were limited by the worker's own testimony about his firm intention to retire at age 65.
Limited damages despite favorable factors
While the worker's age (64), extensive service (34 years), and specialised skills would typically warrant substantial notice periods, Justice Marzari awarded only six months' notice, from September 2021 to the worker's 65th birthday in February 2022, totaling $14,500.
"This is the rare case where [the worker], who had a firm intention to retire when he turned 65, and relied upon the firmness of that intention to establish that it was not his intention to retire at 63," the judge explained, noting it would be inappropriate to award damages beyond the worker's intended retirement date.
The court rejected the worker's claim for $15,000 in punitive damages, finding that while the employer failed to follow proper procedures, his conduct didn't meet the high legal standard of being "malicious and outrageous."
The case demonstrates that employers must seek clear confirmation before treating uncertain statements as notice to quit, particularly during extended layoff periods when recall obligations remain in effect.
