Was it a termination or a resignation? Credibility was key

November 25, 2011 Christina Catenacci Employee Relations, Employment/Labour Standards, Human Resources, Payroll, Wages and Compensation

In a recent case coming out of the Court of Queen’s Bench of New Brunswick, the Court believed the employee’s story that he was terminated without cause, rather than the employer’s story that the employee resigned. When looking at the facts, the Court found the employee to be the more credible witness and awarded termination notice of 23 months.

The case followed a familiar format: the employee claimed that he was terminated, and the employer claimed that the employee resigned.

Who was the Court to believe? The stories were drastically different.

Nonetheless, after listening to both stories, it became clear to the Court that the employee was telling the truth. He asked the employer for a promotion and was denied the position of grocery manager. In fact, the employer told the employee for the first time that there were performance issues and that he did not have the necessary skills for the higher-level position. The employee was surprised since he was currently doing most of the tasks required for the position, albeit with the title of supervisor. At that point, he was frustrated and told his manager that he would probably look for something else as he continued working.

The next thing he knew, the manager confirmed with him that he was leaving his job in a month. When the employee stated that he hadn’t even started to look yet, he was told that if he wasn’t part of the company’s future plans it would be better if he was not there.

The employee felt as though the manager was really not hearing him. THe employer asked for his keys and told him he should go home. He was told that, though he only should receive two weeks’ notice, he would be given four.

The employee had worked with the employer for 25 years. He was “stunned”.

During his wrongful dismissal case, the Court agreed that the employer’s story that the employee simply decided to leave after not getting the promotion made no sense. The employee was definitely terminated without cause. Moreover, the notice provided was insufficient and was substituted with 23 months.

Some of the things the Court considered in its analysis of damages included the fact that the employee was 46 years old, and had worked with the employer for his entire life. He did most of the tasks of a grocery manager, even though his title was supervisor (this allowed the employer to pay him a significantly lower salary).

In addition, the employee had a high school diploma but was working toward a university degree. After the termination, he tried to find alternative positions to no avail, so he decided to retrain.

Therefore, the employee was awarded damages of termination notice in the amount of 23 months.

One may ask how things could have gotten to the point where a long-term employee asks for a promotion and suddenly he is asked to leave.

It appears that in this case, the manager involved genuinely misinterpreted what the employee was saying, and this cost the employer a great deal of money in damages.

How can this problem be addressed? Employers are recommended to provide their supervisors and mangers with training in social skills and proper etiquette when dealing with staff (including listening skills) so that conversations with employees can be more accurate and no one jumps the gun because of mistaken assumptions.

On the other hand, if severely altering a story was an attempt by the manager to get rid of a long-term employee without paying any termination notice, it is important to understand that courts make findings of credibility and will look to whether the employee had a clear intention and made a clear confirmation about resigning. If this is lacking, the court will confirm there was no resignation.

It is never a good idea to try and get rid of a long-term employee by accusing the employee of resigning (a situation where termination notice would not be required). It is always best to be honest and engage in fair dealings to avoid a hefty damage award from the court.

Christina Catenacci
First Reference Human Resources and Compliance Editor

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more

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credibility, employment law, hefty damage awards, long-term employee, management skills, New Brunswick, promotion, resignation, social skills, statutory notice, termination, termination notice, trainng, wrongful dismissal

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