Written on behalf of Peter McSherry

When a person leaves their place of employment, both the employer and the employee have a general understanding as to why and how the relationship ended. For example, the employee might have found an alternative employment opportunity elsewhere and provided their employer with their intention or resigning from their role, or perhaps the employer determined that the role performed by the employee had become obsolete and terminated the employment contract in accordance with the applicable laws and contracts.

However, there are occasions when it is unclear whether a person has been terminated from their employment, or has voluntarily resigned. Such circumstances often give rise to lawsuits wherein the court is asked to review the facts and provide a conclusion as to whether the person voluntarily resigned their employment, in which case they are due no compensation from their former employer, or had their employment involuntarily terminated, in which case the employer is required to provide the dismissed employee with monetary damages.

Employment Relationship Complicated by the Onset of the COVID-19 Pandemic

The recent case of Hurlbut v Low & Low Limited involved the plaintiff (“MH”), a funeral director who was hired by the defendant employer (the “employer”) as a full-time funeral director in December of 2018. The parties did not sign an employment contract at the time of hiring. Although MH initially received an hourly wage for work for the employer, this was quickly converted to a $50,000 annual salaried position.

On March 20, 2020, MH spoke with her employer and advised that she could not accommodate simultaneous full-time work and full-time child care, as a result of which the parties agreed that MH would be laid off from her employment for some time. The employer acknowledged that although the suggestion of layoff initially came from MH, the employer would have laid her off eventually given that, shortly after this decision was made, the government issued public health rules that restricted the level of funeral home services that the employer and other funeral homes could provide. As a result of this, the employer eventually had to temporarily close one of its two locations.

Employee Accepts Full-Time Employment With Another Company During Layoff Period

In the ensuing months, the parties engaged in several chats wherein they discussed the situation and both understood that MH wished to return to her employment and the employer wished to have her return. However, given the uncertainty in the early days of the pandemic, neither party knew when that return might be possible. MH also advised the employer of the ongoing financial hardship she experienced as a result of the layoff. This financial hardship led her to accept full-time employment with a company called Praxair, for a role in which she earned $37,000 annually, while still in her lay-off period.

When the employer learned that MH had accepted full-time employment with another company, it took the position that MH had resigned her employment. Accordingly, it issued a Record of Employment to MH in November of 2020. MH, however, contended that she did not resign her position and that she had been wrongfully terminated, as a result of which she commenced a claim seeking damages for wrongful termination.

Legal Principles Guiding Determination of Resignation or Termination

In assessing whether a person voluntarily resigned their employment or was wrongfully terminated by their employer, the court will carefully consider all of the circumstances in order to understand what each person understood at the time they took action, and why they took the actions they did. In this case, a review of the evidence and testimony provided at trial revealed that MH had accepted the position with Praxair as a way to tide her over during her period of layoff from Low. She testified that the only reason she accepted the position with Praxair, which was a temporary maternity leave placement, was because she was in need of income while laid off from the employer.

Meanwhile, Mr. Low, owner of the funeral home, had testified that he felt “blindsided” by MH’s decision to accept employment with another company. After receiving a call from a recruitment office with Praxair regarding MH, he determined that she had quit her position. He was further bolstered in his conclusion that MH had quit, in that she contacted him to organize a time for her to pick up her things from the employer’s premises.

Employee Holding Two Full-Time Positions May be Terminated if They Cannot Meet Their Contractual Obligations to Employer

The Court, however, found it difficult to understand how Mr. Low had concluded that MH had quit her job, given that she had emitted “signals… that her job at Praxair was just a temporary attempt to bridge her financial needs until she was recalled”. In particular, the Court referenced an email that MH had sent to Mr. Low which indicated that she “had to take a temporary job to get through all of this covid crap” and that she was looking forward to “return[ing] to Low’s”. In these circumstances, the Court “fail[ed] to see how Mr. Low could have not seen, understood, and accepted that [Hurlbut] was only taking the Praxair job to tie her over until she was recalled”.

The Court noted that, as Mr. Low was not a lawyer, it was understandable that he took a “mutually exclusive” view of employment in that “from a non-legal perspective, it can seem incongruent to be employed by two employers full time, such that there is some logic behind believing the acceptance of one job excluded the other. However, legally, [Hurlbut] is entitled to hold multiple jobs with multiple employers, unless the employment contract stipulates otherwise.” In this respect, the Court noted that an employer may terminate an employee who holds two full-time positions with two different employers, but only if the employee cannot satisfy their contractual obligations to the employer in question. The simple fact of having more than one employer, however, cannot on its own justify termination.

Court Finds Employer Wrongfully Terminated Employee

The Court stated that if “Mr. Low wanted to treat this as a resignation, it was incumbent on him to seek clarity. If the Plaintiff confirmed that she was resigning and would not return if recalled, then Mr. Low would be fully within his right to treat this as a resignation. However, that discussion never took place”. In these circumstances, because MH had advised the employer in no uncertain terms that she was accepting temporary employment elsewhere as a means to bridge the gap through the difficulty of the COVID-19 pandemic, it was clear that she had never resigned her employment with the employer.

As such, it was determined that the employer had wrongfully terminated MH when it chose to issue a Record of Employment indicating that MH had voluntarily left her position with the company. MH was accordingly awarded damages for the wrongful termination.

Contact Guelph Employment Lawyer Peter A. McSherry for Assistance with Wrongful Termination Claims

Whether you are seeking to clarify the terms of your employment contract, want to better understand your entitlement to human rights or disability benefits, or are seeking damages for wrongful or constructive dismissal, it is important to obtain trusted legal advice as soon as possible to ensure your rights are protected. Experienced Guelph employment lawyer Peter A. McSherry provides clients with clear and practical legal advice and representation in all facets of employment law matters. To speak with us regarding your employment law matter, complete our online form or call our office at 519-821-5465.