When an employee quits in order to allege constructive dismissal, it is common for the employer to allege that the employee has voluntarily resigned and is therefore not entitled to any severance.
The Alberta Courts looked at this issue in the case of Gibb v Palliser Regional School Division No 26, 2020 ABQB 113, saying at paragraph 48:
[ 48] As noted in Carroll v Purcee Industrial Controls Ltd, 2017 ABQB 211 at paragraph 25:
An employee who voluntarily resigns has not been dismissed and has no remedy through a wrongful dismissal claim.
Because of this, the law recognizes that an effective and binding resignation must be clear and unequivocal. In determining whether an employee has resigned, the court applies a subjective and objective test:
...subjectively, did the employee intend to resign; and objectively, viewing all the circumstances, would a reasonable employer have understood that the employee had resigned.
[49] While there may be times when an employee spontaneously quits their employment due to emotional upset or in the heat of the moment, the law has developed a standard which requires there to be both an intent to quit and a clear and unambiguous communication of that intention.
If your employer is alleging that you voluntarily resigned, please feel free to contact us.
The information contained in this article is not legal advice. No solicitor client relationship is formed through this article. The reader is encouraged to retain counsel for advice in these matters.
