January 5, 2017

No Resignation + No Failure to Mitigate = Damages

An employee who emailed his manager that he “will not be returning” did not quit, according to a recent BC Supreme Court decision.

Mark Bishop was a 61 year old buyer for an electrical products retailer, Rexel Canada Electrical, with more than 27 years’ service. He felt overloaded with work. When his manager, King, sent him an email assigning an additional task, he replied that if she was “dumping” the task on him, he “will not be returning – please advise”. Bishop’s intent, he testified, was not to resign but to elicit a discussion with his manager on the issue.

However, when King phoned him, she indicated that if he was going to resign, it had to be in writing. Bishop acknowledged her comment and continued working until half an hour later when another local manager told him that he had been asked to escort Bishop from the building. A co-worker testified that he thought Bishop had been fired.

The judge concluded the employee had not resigned for at least three reasons. First, the employee was clearly upset when he emailed his manager indicated he would not be returning and the manager should have inquired further after “the emotions had settled”.

In addition, the evidence indicated that King intended to lay-off or dismiss Bishop in the near future. The judge found that the manager used Bishop’s reaction to the additional work as a convenient opportunity to terminate his employment and took advantage of the situation.

Finally, the employer was in a rush to confirm the resignation, as indicated by the series of emails between the manager and the employer’s human resources department. The concern about whether or not Bishop resigned was raised but overlooked in the haste to confirm the resignation.

The judge determined that the employee was entitled to 20 months’ pay, or $87,833.40, in lieu of reasonable notice. She then considered whether the amount should be reduced because the employee declined the employer’s offer of re-employment and back pay, which came shortly after the employee informed the employer he had not resigned.

The court held that Bishop was not obligated to accept the offer of re-employment. King admitted that if Bishop had accepted the offer, there was a significant likelihood that she would have nominated him for termination within a year in any event. Although Bishop was unaware of this plan, the court found that the employee was right to be concerned about his treatment by the manager.

In addition, the employee testified that he was humiliated by being escorted out of the building part-way through his shift. That manner of termination had previously been found by courts to demonstrate a significant deterioration in an employment relationship. The judge was not satisfied that the manager’s stated “security concerns” about Bishop were valid.

The judge also determined that the employer’s letter to the employee, which purported to accept his resignation letter, even though he sent no such letter, was a “deceptive move” by the employer and a fundamental breach of trust between the parties.

One of the lessons to be learned from this case is that an employer must not seize on an employee’s statement to quit, especially when given in the heat of the moment, without allowing the employee to confirm his or her intention.


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