Worker didn't report for work, asked for last cheque, didn't respond to messages
A British Columbia worker voluntarily quit his job and was not entitled to termination pay under the province’s Employment Standards Act, the BC Employment Standards Tribunal has ruled.
The worker was a truck driver for a BC company. On March 3, 2020, the worker was injured at work and had to be off work for nearly two weeks. He was cleared to return on March 16.
When the worker arrived at work on March 16, he found his regular truck locked so he went to the office to get the keys. He spoke with the manager and assistant manager about the paperwork that was required for his return to work.
The worker went back to his personal truck to retrieve the necessary paperwork and returned to the office. He left the paperwork in the office and went home without doing any work.
Requested last cheque
Around mid-day that day, the worker texted the manager and said “You can just stick my last cheque and paperwork in the mail, thank you.” The manager responded a few hours later by asking if this meant that the worker had resigned from his position, but the worker didn’t respond.
Two days later, with no sign of the worker, the manager sent a letter to the worker saying that “at this point, we have no option but to deem you have voluntarily resigned from your position.” The worker didn’t respond to the letter.
The same day, the company issued a record of employment (ROE) indicating that the worker had quit his employment. The ROE was delivered with a letter stating that the worker had resigned and he should return any company property. The worker still did not respond.
On March 23, the worker filed a complaint seeking compensation for length of service under the BC Employment Standards Act (ESA) on the basis that the company had terminated his employment without cause.
Determination that worker quit
A delegate of the Director of Employment Standards determined that the worker had resigned from or abandoned his employment, noting that there was evidence supporting both the subjective and objective elements of the legal test with respect to an employee quitting.
The delegate found that the worker’s text message asking for a final cheque and paperwork along with his failure to respond to the letters indicated subjectively that the worker intended to quit. The delegate also found that the fact that the worker: left the workplace on March 16 without performing any work; failed to report the next day; failed to respond to the manager’s text asking about his resignation; and failed to respond to the March 18 letter were all “affirmative steps” that indicated objectively that the worker had resigned from his employment.
The delegate found that the worker was not entitled to any compensation for length of service under the ESA, issuing the determination in December 2022.
The worker appealed the decision arguing that the delegate erred in law and he referred to a June 26, 2020, WorkSafeBC report that showed he did not refuse an unreasonable suitable offer for employment and directly refuted the company’s arguments. The worker argued that the delegate did not appropriately consider this report, as she didn’t mention it in her decision.
The worker added that he had been victimized by bullying and harassment and the company perpetrated “insurance fraud” on WorkSafeBC.
Correct legal test
The tribunal found that the employment standards delegate applied the correct legal test regarding resignations, so there was no error in law from that. It also found that the delegate relied properly on evidence that had been provided, so she was entitled to conclude that the worker resigned his employment, said the tribunal.
As for the WorkSafeBC report, the tribunal noted that the delegate indicated that she reviewed all the evidence provided, even if she didn’t refer directly to that report. Regardless, the WorkSafeBC report was not relevant to the question of whether the worker was entitled to severance pay under the ESA, as it was concerned with entitled to workers’ compensation benefits and labour relations issues, the tribunal said.
The tribunal also found that it had no authority to determine if the company committed insurance fraud - although no evidence had been presented to support it - or bullying and harassment, which would be an issue for the BC Human Rights Tribunal to address.
The tribunal determined that there was no palpable or overriding error in the finding that the worker voluntarily resigned his employment and therefore was not entitled to compensation for length of service under the ESA. The worker’s appeal was dismissed. See Thomas Reekie (Re), 2023 BCEST 17.