Employee caught in ‘twilight zone’
Silence is the virtue of fools.
When Joan Britton left the Mississauga offices of Partners Graphics after a confrontational meeting with her bosses, she didn’t think it would be her last day of work. Britton hadn’t been formally terminated, and she assumed she hadn’t resigned either. The court decided otherwise.
Britton met her eventual bosses, David Leetham and Steven Watkins, while the three were working at another company in the printing sales industry. Leetham and Watkins soon formed Partners Graphics, and Britton later joined them in a senior administrative role. Over the years, Britton earned her bosses’ respect, and when she recommended her sister, Mary Garceau, for a vacant position, they hired her, too.
But there were problems with Garceau. The company learned Garceau had schemed to defraud it of $2,500, and she was fired after admitting her involvement. Believing that Britton, as her sister, knew of the theft or was involved, Leetham and Watkins immediately questioned her when she returned from vacation. Britton denied any involvement and after a 15-minute meeting, left the office and went home.
Partners Graphics’ response was swift. Just hours later, it summoned Britton to meet at a local Tim Hortons where Leetham gave her a letter prepared by their lawyer, stating that she had voluntarily resigned and asking her to sign her name. Britton refused. The following day, she made arrangements to pick up her personal belongings and a letter of reference. Still not sure where she stood, Britton later e-mailed her bosses asking them to verify “what is my status of employment.” They didn’t reply. Believing that her employer’s conduct during the meetings or its failure to respond to her entreaty amounted to her dismissal, Britton never returned to work and sued for wrongful dismissal.
Mr. Justice Siegel found that Leetham and Watkins concluded they simply didn’t want to continue Britton’s employment and adopted a course of action designed to engineer her departure, without formally firing her. However, reluctantly dismissing her case, the court found that Britton’s actions were more consistent with resigning, rather than with having been fired. Britton, aware that her status was in flux, had an obligation to return to work or to contact her bosses to indicate her desire to do so, ruled the court.
Insincerity or bad intentions won’t always sway judicial favour in a lawsuit. Britton found herself in the “twilight zone” somewhere between having resigned and having been fired where her employer, guided by legal counsel, snapped up the opportunity to rid itself of an employee without paying severance. To avoid a similar outcome, employees should follow these guidelines:
>> Resist taking any steps that can be construed as voluntarily withdrawing from the workplace, as difficult as that may be.
>> Immediately protest a characterization that there has been a resignation, if it wasn’t the intended result.
>> If unclear, request that your options be outlined in writing and seek specialized advice before taking any action.
>> Understand that any ultimatum to resign or otherwise risk losing your job may really be a camouflaged termination.
Daniel A. Lublin is a Toronto employment lawyer practising exclusively in the law of wrongful dismissal. He can be reached at firstname.lastname@example.org through his website, www.toronto-employmentlawyer.com.