A recent ruling from the British Columbia Supreme Court reinforces a simple fact: Employers need concrete proof an employee has resigned. “Assuming” the worker quit or abandoned a position never ends well for the company.
The case involved a commercial truck driver for a logging company who claimed he was wrongfully dismissed. But the employer — Tahtsa Timber Ltd. — thought he had abandoned his position.
Donald Burd, 68, began working for Tahtsa in the early 2000s. Oddly, his start date was never established. Burd said he began working as a driver in 2003, but the company said he was hired in 2005. No employment records were produced at trial.
Regardless, Burd worked for the company until August 2019. By all accounts, he was a safe and conscientious driver.
On Aug. 23, 2019, he had a medical emergency. On Sept. 11, 2019, he underwent heart surgery and his doctor recommended he stay off work for three months. After three months, Burd still didn’t feel well enough to work. He talked to his foreman at the company about returning to work in the summer of 2020.
Burd said the foreman agreed to this request, and the company didn’t dispute that at trial.
Around June 15, 2020, Burd spoke to the foreman about returning. The foreman said they would need a medical clearance for him to return to the job. On June 17, Burd sent a letter from his doctor to the company via fax that confirmed he was fit to resume full duties.
At this point, the stories from the worker and the employer diverge. Burd said, after getting the medical clearance, he tried to reach the foreman multiple times without success. In August 2020, after hearing nothing, he went to the company’s office to collect some personal items.
While there, he was given a phone and spoke to the foreman. Burd said the foreman said he would call him at a later date, but never did.
The foreman, though, said that after he got the doctor’s note he called Burd several times to ask about his return date, leaving several messages on his cell phone and home phone.
On several occasions, Burd was scheduled to operate a particular truck. But he never responded, the foreman said.
As a result, by September, the foreman assumed Burd would not be returning to work.
Because Burd said he hadn’t heard from the company, he sought and found alternate employment with Lakes District Maintenance Inc (LDMI). He worked for the company from Oct. 25 to Dec. 19, 2020, operating a commercial vehicle. He left LDMI because it didn’t pay as much as his previous job, was at the bottom of the seniority list and had a series of “unfortunate incidents” with management.
After leaving LDMI, he felt that given his age and recent medical history, he was no longer an “appealing candidate for a commercial trucking organization.”
The court’s ruling
There was no question the employment relationship had ended – but who was responsible?
The Supreme Court of British Columbia focused in on the call between Burd and the foreman on the day he went to the office and was handed a phone.
The foreman, in an affidavit, said he did speak to Burd on Aug. 26, 2020, and – to his recollection – they discussed fall hauling.
“The fact that they discussed fall hauling supports a finding that as of late August 2020, the employment relationship was still intact,” the court said.
But no work was assigned, and this was likely because – as set out in affidavits – the company “assumed” Burd was not returning.
“In my view, the failure to take meaningful steps to confirm that assumption, including by following up on the August conversation about fall hauling, and the corresponding failure to provide any further work to (Burd) amounts to a clear and unequivocal communication that (his) employment had been terminated,” the court said.
Reasonable notice and aggravated damages
The employment period was somewhere between 15 and 18 years. Burd said, given his age, finding another job would be difficult. He sought 23 months’ notice.
Tahtsa Timber, though, argued a maximum of 12 months was suitable.
The court found a spot in between – settling on 15 months as a reasonable notice period, or a total of $79,025.40. It subtracted the $5,146.02 Burd earned at LDMI for a balance of $73,879.38.
Burd also sought aggravated damages, but the court was not sympathetic. Those types of damages require improper or bad faith conduct that adversely affect the mental state of the employee, beyond the ordinary shock and upset stemming from a dismissal.
This was a case of miscommunication, not bad faith, it said.
“His evidence that he feels like he was punished for having a heart attack and discriminated against because of his age is little more than speculation on his part,” the court said. “Further, his evidence that he was embarrassed and ashamed about being effectively dismissed from the defendant falls short of the type of adverse impact that might support a claim for aggravated damages.”
The court also awarded costs to Burd at Scale B.
For more information, see Burd v Tahtsa Timber Ltd., 2022 BCSC 1372 (CanLII)