I often get questions about “abandonment” of employment/work. The Ontario Divisional Court in an appeal considered this in Sutherland v. Messengers International, 2018 ONSC 2703 (CanLII). The issues on appeal were:
- Did the Appellant had abandoned his job; and
- Was he an employee such that he is entitled to damages for wrongful dismissal and loss of vacation pay. Specifically, was he an independent contractor or employee.
The trial judge held that he’d abandoned his job and that he was an independent contractor.
The reasons of the Divisional Court are brief and the point I want to discuss is the issue of abandonment. There are plenty of other cases that review the issue of “employee or independent contractor or dependent contractor”.
The facts can be briefly stated.
The Appellant was 64 years of age and had been doing deliveries for the Respondent for over four years. On February 13, 2015, the Appellant failed to pick up packages on his delivery route. This had occured on three other occasions and the manager at Nestle (one of the Respondent’s clients) told him “he was “done” and that he should not return to work for Nestle.”
The Appellant left the Respondent’s premises prior to the end of the work day. The Respondent tried to reach him numerous times and finaly was able to speak with the Appellant. The Respondent told the Appellant to come to work on Tuesday to discus other options. This was disputed as was the conversation generally. The Appellant did not come in on Tuesday as requested, and did not come in until February 24, one and one half weeks later.
The Divisional Court summarized the principles regarding abandonment/resignation:
A resignation must be clear and unequivocal. The Appellant’s behaviour must objectively reflect an intention to resign. (Kieran v. Ingram Canada, 2004 4652 (OCA) at para. 27 and Bette v. IBM Canada Ltd, 2015 ONSC at para 57, aff’d 2016 ONSC 2496 (CanLII), 2016 ONSC 2496 (Div. Ct.).
Where there is confusion or uncertainty over whether an employee abandoned his engagement, the onus is on the employer to clarify with the employee whether he or she quit. (Gebreselassie v. VCR Active Media Ltd.,  O.J. no. 4165 (OSC) at para. 42.)
The Divisional Court concluded that, although citing no authority, the trial judge had “provided reasons for his finding that the Appellant abandoned his work” including that he did not return to work for 11 days. These findings of fact were entitled to deference and could only be reviewed if they demonstrated a “palpable and overriding error”, which the Divisional Court said they did not.
It is important to understand that whether a resignation occurs is a question of fact to be decided in context. Rushing to judgment can come back to haunt the employer. If the circumstances warrant, providing a “cooling off” period.
I’ve written previously about this at When is a Resignation a Real and Enforceable Resignation? and When is a Resignation a Resignation Take 2 and Mitigation.