Employer assumes resignation before recall, but worker claims wrongful dismissal
Ontario's Superior Court of Justice recently dealt with a wrongful dismissal claim filed by a worker against her employer, a funeral home.
The court had to determine whether the worker resigned or was wrongfully dismissed, along with the appropriate date of termination, and if the employer's conduct warranted any additional damages.
In this case, the court navigated through legal issues that shed light on the complexities of employment law during the COVID-19 pandemic, specifically relating to layoffs and resignations.
Layoff and alleged resignation
The worker, who was employed as a full-time funeral director, was laid off on March 20, 2020, due to the COVID-19 pandemic.
Throughout the following months, the worker and the employer had several informal discussions about her potential return to work.
However, the employer was unable to recall the worker due to insufficient work caused by public health ordinances.
Facing financial hardships, the worker accepted a full-time job at another company while on layoff. When the employer learned of this, he assumed that the worker had resigned and issued a Record of Employment (ROE) to that effect on November 4, 2020.
The worker, however, maintained that she did not resign but was wrongfully dismissed.
Was it resignation or dismissal?
The court found that the worker did not resign by accepting another job during the layoff period. It said that it was the employer's responsibility to seek clarity about the worker's intentions to return to work if recalled.
The court accepted the worker's evidence that she had conveyed her desire to return to work for the employer, as the new job paid significantly less and was not in her chosen career as a funeral director.
“If [the employer] wanted to treat this as a resignation, it was incumbent on [it] to seek clarity. If the [worker] confirmed that she was resigning and would not return if recalled, then [the employer] would be fully within his right to treat this as a resignation,” the court said.
“However, that discussion never took place. The only clarification we have is the [worker’s] email, where she, unequivocally in my view, conveyed that she was looking forward to returning when the covid (sic) restrictions ‘blew over.’ Nothing close to a resignation,” it added.
Was it wrongful dismissal?
In its decision, the court concluded that the worker was wrongfully dismissed when the employer erroneously assumed that she had resigned without seeking clarification.
The court emphasised that an employee is entitled to hold multiple jobs with multiple employers unless the employment contract stipulates otherwise.
“Termination for cause may follow if an employee holding two full-time jobs cannot fulfill their contractual obligations when burning the candle on both ends; however, based on the circumstances of this case, this was not an issue: it could, however, eventually become an issue when [the employer] recalled the [the worker],” the court said.
Consequently, the court said that the worker was entitled to wrongful dismissal damages, calculated as the difference between what she would have earned working for the employer over an 11-week reasonable notice period and what she earned at her new job during the same period.
The worker's claims for moral and punitive damages were denied, as the court found that the employer's conduct was “an honest but mistaken belief” and did not warrant judicial sanction.
