Date: 2009
Author: Daniel A. Lublin
Publication: Metro

Employer’s premature conclusions cost it the case

I love the stories unearthed from the workplace trenches. Those that I report are chosen based on a combination of their merit, law, skill and oftentimes error. This is the tale of one employer who learned that insincerity and bad intentions will often sway judicial favour in a lawsuit.
With her manager’s consent secured, Jennifer Koos left the Surrey, B.C. office of A & A Contract Customs Brokers to run a short personal errand, thinking she would be right back. However, when Koos returned 30 minutes later, she was called on the carpet and accused by her manager of being a “liar” for saying she would only be gone for a few minutes.
Upset that her manager had chastised her in front of her co-workers, Koos reported the incident to a supervisor, Jane Arnett, who quickly convened a meeting between Koos and her boss.  With matters unresolved after the meeting, Arnett suggested that Koos could leave for the rest of the day. Koos then went to the hospital, where she had her doctor fax a note to her employer stating that she would need two weeks off from work due to anxiety.
Over the next week, Arnett twice left messages on Koos’s phone asking for a reply. When Koos did not, Arnett swiftly wrote her a letter stating that A & A assumed that she had abandoned her position, having failed to respond to Arnett’s entreaties.
Koos quickly wrote back emphasizing that she had not terminated her employment. She was away due to sickness, as the doctor’s note surely should have explained. But A & A was not prepared to accept Koos’s “explanation”. Taking exception to A & A’s brusque position, Koos took the company to court.
Justice Eric Rice of the B.C Supreme Court recently rejected A & A’s argument that Koos had abandoned her job and instead ruled that she had been wrongfully dismissed. Koos never stated that she was quitting, and Arnett never asked. It was the employer’s responsibility to clarify the facts with its employee, before simply treating her as having resigned, wrote Justice Rice who added that Arnett’s desire “to be rid” of Koos’s services coloured her view of the facts and caused her to act prematurely. Koos was awarded ten months’ pay and her legal costs.
A & A was simply too quick to pull the trigger in processing what it viewed was Koos’s resignation. As is often the case, employers use an employee’s departure as an opportunity to relieve themselves of that worker’s services. But not so fast: Where an employee expresses or implies a desire to return to work, she won’t be viewed as having resigned. In order to avoid such costly mistakes, consider the following:

1. Job abandonment doesn’t occur overnight. The employee must be put on notice that a failure to return to work by a specific date will be treated as a resignation.
2. A resignation must be clear and unequivocal. Anything less than an employee’s objective statements or actions showing an obvious desire to leave and not return will be construed against the employer.