Did the carpet cleaner quit or was he fired?

Read the facts of this case and decide — did he resign on Dec. 31 or was he fired Jan. 2?
|Canadian Employment Law Today

Ronald Danforth was a carpet cleaner with Farrow Holdings Ltd. in British Columbia. He had been with the company for slightly more than seven years.

In December 2003 he was dissatisfied with a reduction in his overtime hours. When he picked up his paycheque on Dec. 31, he found he had not been paid for two days of work.

He immediately phoned Cress Farrow, a principal of Farrow Holdings. Danforth testified that he told Farrow that, “because he was denying me work, not paying me for the time I had worked and because I felt he was harassing me, that he was constructively dismissing me and I hung up the phone.”

Danforth said that he then went to one of the company’s work sites on Jan. 2, 2004, to discuss his concerns with Farrow in person.

“But before I could say anything, Mr. Farrow told me that I was fired and that I could pick up my severance cheque the following Monday,” said Danforth.

During both the Dec. 31 phone conversation and the Jan. 2 work site meeting, Danforth demanded severance pay. Danforth had not been scheduled to work between Dec. 31 and Jan. 2 because of the holiday, so there was no issue of him not reporting for work.

At trial, Danforth abandoned his claim of constructive dismissal.


You make the call

•Did the worker resign on Dec. 31?

OR

•Was he fired on Jan. 2?


If you said the carpet cleaner was fired on Jan. 2, you were right. (But if you said he resigned Dec. 31, you wouldn’t be alone. See the lower court ruling below.) The British Columbia Court of Appeal pointed out that a resignation must be clear and unequivocal.

“There must be a clear statement of an intention to resign, or conduct from which that intention would clearly appear,” the court said.

In this case, the evidence fell far short of meeting that test. Farrow’s own evidence was that Danforth claimed to have been constructively dismissed and that he was entitled to severance pay.

“A claim of constructive dismissal, and to severance pay, is inconsistent with an intention to resign,” the court said.

A reasonable person could not have concluded that Danforth had intended to resign, the court said. And the fact he said nothing to qualify his statements about being constructively dismissed was irrelevant, the court said. Since Danforth didn’t resign, he didn’t have to say anything because there was no resignation to qualify or retract, the court said.

The B.C. Court of Appeal awarded Danforth six months’ notice, rejecting a claim for an increase in the notice period based on an alleged absence of good faith and fair dealing.

Those who thought he resigned on Dec. 31 can feel placated by the fact at least one judge agreed with them. The B.C. Court of Appeal decision overturned a lower court’s ruling where a judge said Danforth had, in fact, resigned.

That judge pointed out that Danforth complained about his work schedule, stated his concern about the shortfall in pay, said he considered himself to be constructively dismissed and demanded severance pay.

“I conclude that a reasonable person would have understood by his statement, in these circumstances, that he had resigned,” the lower court said.

But the B.C. Court of Appeal disagreed and overturned that ruling.

For more information see:

Danforth v. Farrow Holdings Ltd.

, 2005 CarswellBC 2977 (B.C. C.A.)

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