When the Supreme Court of Canada dismissed his late client's application for leave to appeal last month in Britton v. Partners Graphic Support Service & Supply, employment lawyer Andrew J. MacDonald arrived at the disappointing end of a long litigation road.
In pursuing this employment law case to Canada's highest Court, Mr. MacDonald had been fueled by a promise he made to his now-deceased client, Joan Britton, the last time he saw her.
"She believed she was right," Mr. MacDonald, of Toronto firm, Markson Macdonald said, shortly after the Supreme Court's February 28, 2008 ruling.
"When my client became ill with cancer, she asked me to continue with her case, and I agreed I would."
Ms. Britton had commenced a long, stable tenure with the Defendant, Partners Graphic Support Services in 1993. Graduating to a senior administrative role, she earned approximately $54,000.00 per annum. In April, 2003, however, upon retuning from a vacation, Ms. Britton soon found herself in a workplace no-person's land, in which the status of her employment suddenly became murky and undetermined.
In Ms.Britton's absence, her sister, who had also been employed by the company, had been terminated after acknowledging misconduct. The employer suspected Ms. Britton of involvement in her sister's wrongdoing. Two confrontational meetings between Ms. Britton and her employer followed in early April, 2003. The second meeting, on April 3, culminated with Ms. Britton's refusal to sign a letter of resignation that had been prepared for her signature by the employer's solicitors.
When she left the workplace, she had not explicitly been terminated. She had not resigned. She had not been told she should return to her position, nor had she been advised she could not.
On April 3, 2003, she corresponded by email with her employer to arrange at time to pick up her personal belongings from the workplace. She was told the following weekend would be acceptable. Unsatisfied, on April 4, 2003, she again emailed her employer, saying "Please verify what is the status of my employment." Her employer did not respond.
Ten days later, Ms. Britton alleged through counsel that she had been dismissed, or alternatively, constructively dismissed. She commenced legal proceedings shortly thereafter, claiming damages for wrongful dismissal and additional Wallace damages for bad faith by her employer in the conduct of the dismissal.
By the time of trial in February 2006, however, Ms. Britton had succumbed to her illness, and trial proceeded in her absence.
At trial, Mr. Justice H.J.W. Siegel concluded "reluctantly" that the employer's actions, while insensitive, constituted neither dismissal nor constructive dismissal.
In an unreported decision, the Court found that Ms. Britton had not been legally entitled to assume or extrapolate from the circumstances that she had been terminated.
Rather, the Court squarely placed the onus upon the Plaintiff to demonstrate conclusively that she had not resigned, even in the face of the request for resignation by her employer.
Mr. Justice Siegel wrote in his decision:
I do not believe [the employer] had an obligation... to seek Britton out after she left work on April 2, 2003 to ascertain whether she wished to return to work, despite her refusal to sign the voluntary resignation letter. Having left the office for the day, Britton had the obligation to return to work or to contact [her employer].to indicate her desire to do so. Had she indicated, as late as early the following week that she wished to return to work, I believe the defendants would have had an obligation to allow her to do so in these circumstances. However, because she failed to take any steps to indicate her intention, if she indeed wished to continue her employment, PG was entitled to treat her actions as constituting a voluntary resignation.
The Plaintiff appealed the trial court's ruling. In a short judgment issued September 21, 2007, the Court of Appeal for Ontario unanimously dismissed the appeal, holding:
The issue – whether Mr.[sic] Britton quit or was fired was fact driven. We are not persuaded that the trial judge made any clear or palpable error in his careful analysis of the evidence.
Nor has the appellant convinced us that the trial judge misapplied the law as it relates to the determination of when an employee will be held to have resigned.
The appeal must be dismissed.
Such "am I fired or not fired," grey-zone scenarios are not altogether uncommon in smaller workplaces and in organizations that do not routinely employ proactive, sophisticated human resources practices.
The Supreme Court of Canada's refusal to review the Britton ruling may well clarify that there is a high onus upon employees in these circumstances to take such direct and concrete steps as are necessary, including communicating with the employer and reporting to a workplace under highly strained conditions, to avoid an inference of voluntary resignation.
Counsel for the Defendants, Todd C. Hein, of Brampton firm McCabe, Filkin & Garvie, agrees:
I would say that this case underscores the existing general obligation of an employee to report to work, and that it is not the employer's duty to track down the employee and ask or insist that he or she come to work.
Mr. MacDonald takes a predictably narrower view:
The trial judge did not apply a duty of good faith on the employer to invite Ms Britton back to work, having sent her home and having told her she had resigned when in fact and in law, she hadn’t.
Another trial judge faced with the same facts may have approached the case differently in recognition of the inequality of bargaining power between employees and employers and most importantly, given that Ms Britton did not have legal advice during the critical events at issue whereas the employer did.
Hopefully the next trier of fact that tackles this issue will clearly apply the law and will appreciate that while a plaintiff may die the justice of her case does not.
Neither the trial judge nor the appeal court specifically addressed the implications of the draft Letter of Resignation handed by the employer to the Plaintiff for execution. Mr. MacDonald contends that constructive dismissal may have arisen as a matter of law on that basis alone:
Yes this was an error of law as I argued. It was much more than a draft resignation letter.
In the first meeting at the office Ms. Britton was accused of wrongdoing, told her responsibilities would change to which she stated she could not work for her employer if they did not trust her. She was upset. She was sent home. The reason given for her being sent home by her employer i.e. out of sensitivity for a ski injury she had suffered was found by the trial judge to be “not believable”. Ms. Britton was sent home and then within an hour or so brought back to a donut shop and presented with a letter on her employer’s letterhead and signed by the two principal partners of the business stating “Further to our conversation this morning we hereby acknowledge and accept your resignation effective immediately.”
Ms. Britton did not ask for the letter to be prepared nor was she told in advance the letter had been prepared. The letter was handed to Ms Britton and she was asked to sign it. She refused and the letter was left with her. She was never invited back to work. The trial judge also found that she did not expressly resign at either meeting. Because the employer prepared and signed the letter before presenting it to Ms. Britton they had accepted her resignation “effective immediately” when in the Trial Judge’s own findings she had not resigned.
That is a dismissal, a wrongful dismissal or a constructive dismissal - it can in no circumstances be a voluntary resignation.
Mr. Hein's view differs on the facts, if not the law:
I do not believe that, on the facts of our case, the draft Letter of Resignation provided by our client (the employer) could be seen as giving grounds for a constructive dismissal. That is not to say that such action, on the right facts, could give the foundation for an employee to argue constructive dismissal. However, in our case, the evidence was that the employer was simply presenting the letter on the basis that it felt that the employee had already resigned - the employer was simply asking that the employee confirm the resignation in writing. I think that the fact that the employee did not sign the letter of resignation raised an issue as to whether or not there was a resignation at that moment in time, but the employee's subsequent conduct reassured the trial judge that there had in fact been a resignation.
Both counsel acknowledged the challenge of proceeding to trial on behalf of a deceased litigant. Mr. Hein noted that Plaintiff's counsel encountered genuine evidentiary hurdles as a consequence of Ms. Britton's untimely passing:
Wrongful dismissal cases, particularly the constructive-dismissal variety, are generally difficult cases to advance; each one depending upon its own facts. In most litigation, it is most helpful to be able to advance your case on your own evidence, i.e. examination-in-chief. The fact that Ms. Britton unfortunately died before trial I believe made it that much more difficult for the Plaintiff. Of course, it is not known and cannot be said whether the outcome would have been different had she lived to the trial and given evidence on her own behalf. The trial judge was well aware of the issues arising from that fact, and determined at the outset to deal with those issues if and when they presented themselves. In the end, it was not necessary to delve into hearsay issues, and the trial judge was able to decide the case on the evidence presented.
Mr. MacDonald reasserts his disappointment with the ultimate outcome of the case:
While a plaintiff may die the justice of her case does not. While the participants in the justice system die, the law they create does not. The trial judge never considered what it must have been like for Ms. Britton to have died with the justice of her case unresolved.
In fact her last words to me were “You have to continue with the case”. I did continue at personal expense and sacrifice. But I did it because I believed in the system of justice we have. I really believed one court out of three would have applied the law as it is set out in the books i.e. the Ontario Court of Appeal cases of Kieran and Palumbo. I felt it was my professional duty and responsibility to follow her last instructions.
In addition to showing deference to the decisions of a trial judge on findings of fact it is also important for appeal courts to consider the correctness of the legal conclusion – particularly, as in this case, when no case law is cited in support of the decision at either the trial or the Ontario Court of Appeal.
The findings of credibility against the employer and that they acted insensitively makes the ultimate decision of the trial judge more unjust.
My prediction is this case will either not be followed by the courts or will be overturned when an appeal court finds the appropriate occasion to properly rule that an employer cannot force a resignation by sending an employee home and delivering to them a letter accepting a resignation effective immediately when the employee did not have a clear and unequivocal intention to resign.
Nonetheless, prudent counsel and employees will look to the Britton case as underlining the cautious and proactive approach that must be taken when workplace status is unclear. Reiterating Mr. Justice Siegel's comments at trial, if an employer has no duty to ascertain whether a Plaintiff intends to return to a workplace after a conflict-related absence, clearly, the employee alone must take appropriate steps to demonstrate that her intention to report to work continues, and that her absence cannot be construed as a voluntary resignation.
Had Ms. Britton retained counsel immediately and promptly placed her employer on notice that absent its timely response to the April 4 email in which she requested clarification as to her employment status, she would have no alternative but to consider herself constructively dismissed, perhaps the outcome might have been different.
- Garry J. Wise, Toronto