Worker 'basically refused to come back to work or provide a real explanation,' says lawyer offering tips for HR
“If there's any confusion or uncertainty at all as to why an employee isn't returning or reporting to work, then the employer needs to give the employee every opportunity to explain the situation.”
So says Joseph Oppenheim, a labour and employment lawyer at Carbert Waite in Calgary, after the Canada Industrial Relations Board (CIRB) ruled that a worker resigned from his position and wasn’t unjustly dismissed.
ATS Andlauer Transportation Services Limited Partnership is a company based in Vaughn, Ont., that provides temperature-controlled transportation services for the healthcare industry. The company hired the worker as a driver in January 2013. His duties included sorting and scanning freight and making deliveries.
On July 29, 2021, the worker received his annual performance review, which was negative about his attendance and punctuality. The worker felt it was inaccurate as he had been receiving worker’s compensation benefits and was on a graduated return-to-work schedule.
The supervisor asked the worker to sign the review, but the worker refused because he wanted to review it and make comments. The supervisor questioned the worker’s diagnosis and his medical practitioners, and then asked when the worker would be able to return full-time. The supervisor gave him a copy of the performance review.
Dispute over performance review
The next day, the worker was called into a meeting with a union representative present. The worker said that he hadn’t signed the review because he understood they were going to discuss what he disagreed with. The worker revealed that he was recording the meeting, but the supervisor said he wasn’t to record anything in his office. However, the worker continued recording.
The supervisor told the worker he would give him another copy to sign by the end of the day. After the meeting, the worker went to the warehouse to his delivery van. According to the worker, the supervisor approached him and began yelling at him to stop faking his injury and that he was the slowest driver. The supervisor said that the worker could “finish the day, you’re done” and that he could hire a new driver. There were no witnesses to the incident.
The worker believed that he was fired after finishing his work for the day. The supervisor left the office and the worker didn’t speak with him after he returned from his deliveries. No other managers were present, so he didn’t speak to anyone or return his access card and keys.
The worker called a friend who was a former employee and told him that the performance review was “trash.” He described the encounter in the warehouse and said that the supervisor had told him to “drop the charade” and not to come back until he was ready to perform a full day’s work. The friend asked if the worker had confirmed that he was fired, which the worker said he didn’t as he concluded that he was done. He also said that the supervisor had the whole weekend to “think of something up” and explain to his own boss why the worker wasn’t working.
The worker didn’t receive a termination letter and he wasn’t asked to return his access card.
Worker didn’t report for work
The worker didn’t report for work the next workday, Aug. 3. The supervisor texted him asking if he was coming to work and the worker responded no because he had been dismissed. The supervisor asked him what he was talking about and said he needed to know what the worker was doing, but the worker didn’t respond.
ATS Andlauer sent the worker a letter stating that the company didn’t understand why he thought he was fired and directed him to return to work or update his status by Aug. 5, or else it would consider him to have abandoned his employment. The worker responded that he didn’t quit but was fired and he didn’t answer messages or calls because he was no longer an employee.
ATS Andlauer issued a record of employment (ROE) stating that the worker had quit his employment.
The worker filed an unjust dismissal complaint, alleging that his supervisor verbally dismissed him, using the words “you’re done” and indicating that a replacement would be hired. The company maintained that the worker misinterpreted the exchange and he left his job voluntarily.
The CIRB examined evidence from both parties, including testimony from various members of management at ATS Andlauer. It found significant discrepancies in the worker’s account, particularly regarding the alleged dismissal.
No dismissal
The CIRB found that the worker’s recording didn’t support the idea that the supervisor dismissed him in the meeting. Instead, the supervisor gave him a copy of his performance review and instructed him to finish his day and return the completed document later, which the CIRB determined was a routine managerial task.
Furthermore, the worker completed his delivery route and returned to the office without receiving any formal communication of dismissal, such as a termination letter or revocation of his access privileges. Despite this, he didn’t return to work and subsequently communicated that he believed he had been fired, the CIRB said.
ATS Andlauer provided detailed evidence on the company’s formal procedures for terminating an employee, which involved multiple steps including approval from human resources, a formal meeting, and the retrieval of company property. None of these steps were followed in the worker’s case, said the CIRB.
The company also indicated that the supervisor had no authority to dismiss an employee unilaterally and doing so would have violated company policy.
The CIRB also found that the worker’s actions were consistent with resignation and ruled that he had abandoned his employment. It highlighted that the worker’s failure to clarify his employment status, despite receiving multiple communications from his employer, indicating a subjective intent to resign, said the CIRB.
Intention to resign
“The issue that the [CIRB] had with the worker’s conduct was, he wasn't being transparent about what happened, and he wasn't explaining the situation very well,” says Oppenheim. “So ATS Andlauer felt it was within its rights to basically say, ‘Bottom line, you're not explaining yourself. We don't think you've been fired and you're not coming to work, so we're taking the position that you've abandoned your employment.’”
“I think the fact that this worker basically refused to come back to work or provide a real explanation for why he wasn’t returning to work, didn't sit right with the board,” he adds. “And it's not quite stated expressly, but the worker surreptitiously recorded a meeting with his supervisor - although it's at least borderline legal, the optics are terrible and it was consistent with the conclusion that the worker wasn’t being honest and had an ulterior motive to be able to take the position that he was fired so that he could pursue an unjust dismissal complaint.”
It's understandable why ATS Andlauer took the position that the worker abandoned his employment, but it might not work out the same way in every case without more action by the company to clarify the situation, according to Oppenheim.
“You've got to create a good paper trail to demonstrate that you have all the facts, you've given the employee every opportunity to explain the situation, and you've conducted an investigation to determine the facts before you take the position that the worker has resigned or the employment is frustrated or abandoned,” he says. “[ATS Andlauer] probably could have done more to stir up evidence in that regard.”
Resignation, termination must be clear
The law is that a resignation has to be clear, so an employee has an obligation to state clearly what the intent is, and the converse is true for an employer dismissing an employee, says Oppenheim.
“What was going for the worker was the fact that his supervisor confronted him at work and said ‘You're done’ - you certainly don't want to encourage your management team to play loose with language like that,” he says. “If you're going to let someone go for whatever reason, take your time, be deliberate, do things in writing - you want to set the record straight right at the outset and you don't want to be in a position where it's unclear what you've decided to do - you don't want to fire someone or suggest that someone is fired in the heat of the of an argument.”
The CIRB dismissed the worker’s complaint, concluding that the worker abandoned or quit his employment.
The decision demonstrates that an employee has to explain themself if they're not going to return to work, says Oppenheim.
“They can't simply hide behind a flimsy explanation and do nothing further,” he says. “The employer can make demands of employees to fully explain why they're not reporting to work, and if they're not going to be honest and transparent, then the employee can face some consequences for that.”
See Maruschak and ATS Andlauer Transportation Services GP Inc., Re, 2024 CIRB 1119.
