In an earlier blog post, we discussed the possibility of employees rescinding, or “taking back”, their resignations. Much of that discussion focused on what makes a resignation valid. In a recent decision of the Ontario Superior Court, the issue of whether a resignation was indeed valid or not was raised once again.

Miller v Ontario Potato Distribution Inc.: The Facts

The Plaintiff employee in this case worked for the Defendant as a “lumper”. He had been with the Defendant for approximately 11.5 years. On April 29, 2020, the Plaintiff verbally resigned from his employment in the middle of his shift and signed a written confirmation of his resignation.

Why had he resigned? According to the Plaintiff, he resigned after a threatening incident led to him feeling unsafe in the workplace. In his view, the incident was evidence of a hostile environment that gave rise not to resignation but to a constructive dismissal.

What had made the Plaintiff feel so unsafe at work? He explained that on the morning of his resignation or constructive dismissal, he was led outside by a supervisor to a mysterious car parked in the parking lot. Outside the vehicle was, as the Plaintiff described, a “very tall man in a trench coat.” According to the Plaintiff, the man said he knew about the text messages the Plaintiff had been sending to a supervisor named Kim, and told him “it stops now and when your program is over so are your benefits.” The man then allegedly pointed his fingers in the Plaintiff’s face “like a gun.” When the Plaintiff told his supervisor he no longer felt safe at the facility, he was forced to sign a document and leave.

The Defendant’s Version of Events

The Defendant told a very different story about what happened that day. It was the Defendant’s evidence that the Plaintiff was not led outside by a supervisor and directed to approach a mysterious car. Rather, the supervisor had simply sent the Plaintiff outside for a customary smoke break because he was a smoker. He was never instructed to do anything further. The supervisor did not even go outside with the Plaintiff.

When the Plaintiff returned from his smoke break, he approached the supervisor and sad he “could not do it anymore” but did not explain. The Plaintiff then asked for a resignation form, which the supervisor provided. The Plaintiff signed it and did not seem confused about what he was signing.

Who Did the Court Believe?

The burden of proof rested with the Plaintiff to establish on a balance of probabilities that the parking lot incidence actually occurred and that the Defendant was involved in it or directed it. Ultimately, the Court held the Plaintiff failed in discharging his onus.

The Court assessed the Plaintiff’s credibility with reference to an often cited decision of the British Columbia Court of Appeal, Faryna v. Chorny, which provides:

“The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions …”

Ultimately, the Court did not believe the Plaintiff’s version of fact was in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.” The Plaintiff therefore failed to discharge his burden of proving that the events alleged actually occurred. As such, the Court could not find that he had been constructively dismissed.

What Does This Mean For His “Resignation”?

In order to be valid and enforceable, a resignation must be clear and unequivocal. It must objectively reflect an intention to resign, or conduct evidencing such an intention to resign. It must be voluntary. If a resignation is made in a spontaneous outburst during a highly emotional situation, its voluntariness may be in doubt. Furthermore, a resignation may actually be “taken back” by the resigning employee if the employer had not yet relied on the resignation to its detriment.

However, because the authenticity of the Plaintiff’s alleged parking lot encounter had been disproven, the voluntariness of the Plaintiff’s resignation could not be said to have been made during a highly emotional situation. The Plaintiff did not resign under any duress. His resignation, therefore, must have been voluntary. At no point afterward did he seek to take back his resignation.

As a consequence of all the above, the Court held the Plaintiff to have voluntarily resigned.