Canadian Employment Law Today

Canadian HR Reporter, 2020 On Aug. 17, 2018, a supervisor arrived at the job site where Coutlee was removing tiles and asked to speak to him. Coutlee re- plied that he would only speak to the super- visor if he was offering him a raise or wanted to speak about his job performance. He also said if the supervisor wanted to discuss an incident where the supervisor called him names in front of other employees, he would refuse because he had been advised not to. The supervisor said that if Coutlee refused to talk to management, then he was a danger on the site. He told Coutlee to take his tools and leave. Coutlee asked if he was fired and the supervisor replied "No, I want to talk to you, but if you won't talk to me, you are suspended and you can pack up your tools and get off the site." He then arranged for a notice of non-compliance to be prepared for Coutlee to sign. As he left, Coutlee told other employees that he had been fired. He expected to re- ceive a record of employment (ROE) with his final paycheque, but instead received a regular paycheque and no ROE. There was no contact by either side until Coutlee then texted Apex and demanded an ROE so he could apply for employment insurance. Coutlee's application for employment in- surance was refused because Service Canada found he had voluntarily left his employ- ment. He then began an action against Apex for wrongful dismissal. He also claimed Apex constructively dismissed him when it failed to invite him back to work after the Aug. 17 incident, failed to clarify why he requested an ROE, refused to pay for his vehicle repair, failed to provide him with full-time work on multiple occasions and bypassed the normal write-up disciplinary system. Clearly no termination The court found that the altercation on Aug. 17, 2018 in which Coutlee's supervisor told him to go home included "a clear denial at the time by [the supervisor] that [Coutlee's] employment had been terminated." As a result, there was little doubt that Apex did not terminate Coutlee's employment. In ad- dition, Apex prepared a notice of non-com- pliance for Coutlee to sign, which indicated the company intended to discipline him, not end his employment. In addition, Coutlee had been sent home on multiple occasions previously and not been dismissed. On those occasions, the suspensions ended when Coutlee contacted management to resolve the issue and return to work. There was no reason for Apex to consider this situation any different, par- ticularly since Coutlee didn't get along well with his supervisors and some co-workers and essentially controlled when and where he worked. Apex went along with this be- cause it needed his skills, but it meant that the onus was on Coutlee to contact the com- pany for work assignments, said the court. The question to consider, then, was whether Coutlee had resigned from his posi- tion with Apex, said the court. After the Aug. 17 incident, rather than contacting management to resolve the mat- ter, Coutlee requested an ROE — a change from the other incidents and an indicator in an objective observer that he intended to quit. "In none of these past instances did [Cout- lee] make the request for an ROE," the court said. "This casts serious doubt on [Coutlee's] assertion that, since an ROE would be need- ed for employment insurance on any type of interruption of work, having asked for an ROE cannot be seen as a clear and unequivo- cal expression of his intent to resign." The court found that, in the circumstanc- es, it was Coutlee's responsibility to make inquiries about his employment with Apex and when he requested an ROE, a reason- able employer in Apex's position would see it as "a clear and unequivocal expression of his voluntary intent to resign." The court also found no evidence of con- structive dismissal, as Apex didn't guaran- tee full-time hours, it just tried to provide them as much as possible — not to mention Coutlee's health issues and disputes with management that sometimes prevented him from working at particular sites. In addition, the $500 Apex gave Coutlee fulfilled any ob- ligation to pay for damage to his car while performing work-related activities — the company didn't have to pay the entire bill, said the court. As for the company's failure to contact Coutlee for more work after Aug. 17, 2018 or inquire about the ROE request, it was Cout- lee's obligation to get in touch with manage- ment, as was previously established practice. The court determined that Coutlee re- signed from his employment and dismissed Coutlee's action. For more information, see: • Coutlee v. Apex Granite & Tile Inc., 2020 BCSC 315 (B.C. S.C.). June 17, 2020 | Canadian Employment Law Today CREDIT: CNYTHZL ISTOCK ABOUT THE AUTHOR Jeffrey R. Smith Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.smith@keymedia.com, or visit www.employmentlawtoday.com for more information. The worker didn't request an ROE after being sent home before, so such a request was a clear and unequivocal expression of his intent to resign.

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