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Communication is Key if an Employee is Absent Without Leave

August 18, 2021

In the case of Wong v Polynova Industries Inc., 2021 BCSC 603, the BC Supreme Court confirmed that a voluntary resignation by an employee requires an unequivocal act to repudiate the employment contract, and the employer must take steps to accept this repudiation.

Facts

Mr. Wong was an employee of Polynova Industries Ltd. for 15 years. In March 2020, he communicated to one of Polynova’s supervisors that he was unwell and would not be returning to work for two weeks. Over the next two months there was no communication between the parties, and Mr. Wong did not return to work. Polynova attempted to reach Mr. Wong on two occasions with no success. Polynova assumed that Mr. Wong voluntarily terminated his employment.

Mr. Wong returned to work in June 2020, to discover that Polynova trained an employee to replace him in April 2020. While attending the workplace on this day, Mr. Wong had a conversation with the Polynova’s President in which he was notified that his employment had ended. He received a Record of Employment (“ROE”) nearly ten days following the conversation with the President.

Mr. Wong disputed the accuracy of the ROE, and he notified Polynova that he could start a lawsuit in the Supreme Court and a complaint in the Human Rights Tribunal. Following Mr. Wong’s response, Polynova offered him re-employment at the same wage, and included back pay from June 1, 2020. Mr. Wong rejected the offer, citing a breakdown of the good faith between the parties.

Issues/Decision

The court decided four issues in this case.

First, it was determined that Mr. Wong did not resign, but he was terminated without notice. The court held that although the actions by Mr. Wong amounted to a repudiation of the employment contract, Polynova failed to communicate any acceptance of this repudiation to Mr. Wong.

Second, the court held that Mr. Wong did not fail to mitigate his damages by rejecting the offer for re-employment. In citing Beggs v Westport Foods Ltd., 2011 BCCA 76, the court decided that any chance of repairing the employment relationship was irretrievably lost after this dispute, and that it would not be reasonable to expect Mr. Wong to re-enter an employment agreement.

Third, Mr. Wong was entitled to 15 months’ pay in lieu of notice which was one month for each year of service. The court considered his age (70), noting it is more difficult for an older employee to find alternative work. This factor was then balanced with the evidence from Polynova that Mr. Wong had talked about retiring.

Fourth, Polynova was not held liable for any punitive or aggravated damages, as there was no conduct to warrant such an award.

Takeaways

When an employer feels an employee has resigned from their position, the employer must unambiguously accept the resignation. In this case, the employer could have written to Mr. Wong to advise that it understood he had resigned from his position and issued an ROE. Failure to communicate in these scenarios can result in a finding there was a termination instead of a resignation.

This case also provides another reminder that written employment agreements can significantly limit an employer’s exposure on termination without cause. Mr. Wong would not have received 15 months’ payment in lieu of notice if he had an enforceable written employment agreement limiting his entitlement to a lower amount.

This update was authored by Harper Grey lawyer, Scott Marcinkow and summer student, Arjun Dhaliwal. Have questions regarding the topic discussed? Contact Scott at [email protected] or anyone else listed on the authors page.

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Expertise

Important Notice: The information contained in this Article is intended for general information purposes only and does not create a lawyer-client relationship. It is not intended as legal advice from Harper Grey LLP or the individual author(s), nor intended as a substitute for legal advice on any specific subject matter. Detailed legal counsel should be sought prior to undertaking any legal matter. The information contained in this Article is current to the last update and may change. Last Update: August 18, 2021.

©Harper Grey LLP 2021

 

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