Is This a Resignation Or a Wrongful Dismissal?

The court was recently tasked with determining if an employer wrongfully dismissed an employee who obtained another full-time job while she was laid off. Generally, unless it is explicitly stated in the employment contract, an employee can hold multiple jobs (provided the employee is able to fulfill their contractual duties to their employers). The situation in Hurlbut v Low & Low Limited involved an employee who was laid off from her full-time position when she decided to secure other employment. The court ultimately found that the employer wrongfully dismissed the employee when they assumed she had resigned upon finding out she had secured another job. There are some key takeaways from this case that shed some light on wrongful dismissals.

What Is Wrongful Dismissal?

For the most part, an employer can fire an employee at any time, without cause, provided they give proper advance notice or provide compensation in place of notice. In Hurlbut v Low & Low Limited the employee had been laid off from her job due to the Covid-19 pandemic. With the uncertainty of when she could resume work again, she secured another job. When her employer found out she had gotten another job, it assumed she had resigned and issued her Record of Employment.

Communication Is Key

The court ultimately found that it was the employer’s responsibility to seek clarification from its employee to see if she was, in fact, resigning or if she planned to return to work when recalled. An employer should never assume an employee has resigned without receiving clear and unequivocal communication that they have resigned.

Conclusion

Employers should familiarize themselves with employment laws or work with an employment lawyer so as not to make these critical errors. In this case the employer went through the costly and time-consuming process of small claims court and was ordered to pay the former employee damages for wrongful dismissal and a portion of her legal fees, plus interest. The best way to ensure compliance with employment laws is to work with an employment lawyer.

If you are an employee and think you may have been wrongfully dismissed, consult with an expert. You may be entitled to additional compensation. At Whitten & Lublin, we work with employers and employees in all matters of employment law. Give us a call at (416) 640-2667 or get in touch online if you have questions.