News & Events

Resignation -- Be Sure to Tread Carefully

Submitted By Firm: Roper Greyell LLP

Contact(s): Gregory J. Heywood, Jeevyn Dhaliwal

Author(s):

James D. Kondopulos

Date Published: 2/1/2013

Article Type: Legal Update

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What appears to be a resignation on its face may not, at the end of the day, constitute a valid resignation. 

As illustrated in a recent decision of the B.C. Supreme Court, Haftbaradaran v. St. Hubertus Estate Winery Ltd., [2011] B.C.J. No. 1983 (S.C.), this is particularly so when the resignation is the end result of a heated and emotional exchange between the employee and his or her employer.  

Background facts

Hooman Haftbaradaran was St. Hubertus Estate Winery’s winemaker.  He was responsible for overseeing production of his employer’s wines.  

On April 7, 2010, Haftbaradaran had a heated and emotional exchange with one of St. Hubertus’ proprietors, Andy Gebert.  The meeting took place in Gebert’s office.  Haftbaradaran became emotional and agitated and complained to Gebert that in spite of the fact he worked hard for the winery, he felt undervalued and unappreciated.  

Gebert asked Haftbaradaran to leave his office but the winemaker refused to go.  Gebert became more forceful.  He said to Haftbaradaran that he was “being a pain in the ass” and told him to “get the fuck out of [his] office and go and make wine for [him]”. 

Haftbaradaran became upset and emotional.  He broke down in tears.  Gebert responded by taking a gentler tone and trying to reassure and calm Haftbaradaran.  He told the winemaker not to worry and said he would not tell anyone about the crying jag.  Haftbaradaran did not accept the reassurance and suggested that Gebert would disclose what had happened.  

At this point, Gebert, who was already frustrated and angry about being kept from his work, said that if Haftbaradaran was not prepared to take his word and was so unhappy at the winery, he should perhaps go look for another job. 

In response, Haftbaradaran took his cellar key out of his pocket and laid it on Gebert’s desk.  He made a statement, in effect, inviting Gebert to fire him.  When the winemaker was again told to get out of his superior’s office, he reached out to shake Gebert’s hand and, with a smile on his face, said words to the effect of “good luck making wine”.  Haftbaradaran then gathered his personal effects from the cellar, got in his vehicle and left the winery. 

Later in the day, after Gebert and his brother, Leo, learned that Haftbaradaran had left St. Hubertus’ property, they began to wonder if the winemaker was serious about leaving his employment. 

As an aside, an exchange similar to the one of April 7, 2010 had taken place around six months earlier between the winemaker and Leo Gebert.  Haftbaradaran had again become upset and emotional.  He had voiced a litany of complaints to Gebert and said he did not feel valued and appreciated.  Haftbaradaran had broken down in tears and turned over his cellar key, saying words to the effect of “you can do with me whatever you want”.  Notwithstanding this exchange, the winemaker continued on the job and, subsequently, regained possession of his key and managed to negotiate a pay increase.   

Returning to the events of April 7, 2010, Andy Gebert went on to send Haftbaradaran an e-mail to the following effect: 

Hi Hooman 

I just like to recap this morning’s discussion in regards of your position at our winery. 

As discussed we have to plan your departure from our company in order to clean up all the loose ends. 

We hope this should be possible within the next 4 weeks. 

Please let us know if this will work for you or if you will leave us before this time? 

Failure to respond by April 9, 2010 12:00 noon will let us to believe that you have already resigned your position at our winery. 

[Sic.

Haftbaradaran reacted to Gebert’s e-mail by retaining legal counsel.  In a letter to St. Hubertus, counsel said his client had been dismissed from employment and, also, had no intention of returning to work at the winery. 

A short time later, St. Hubertus paid Haftbaradaran $1,803.65 in what was characterized as severance pay.  This did not satisfy the winemaker.  He commenced legal action in B.C. Supreme Court for breach of his employment contract. 

Breach of employment contract

One of the central issues in Haftbaradaran’s case was whether he was dismissed from employment or had resigned.  

St. Hubertus’ argument was a simple one.  In its submission, Haftbaradaran had resigned and was “not … entitled to damages on any theory”. 

Mr. Justice Peter Rogers applied the following legal test to determine whether there had been a valid resignation: 

In order for an employee’s resignation to be effective, the resignation must meet the objective test of the disinterested and reasonable observer.  Would such an observer conclude from the employee’s words and actions that the employee had irrevocably quit his or her job?  Would that observer conclude that the employer had accepted the resignation as an end to their relationship? 

Mr. Justice Rogers held that the April 7, 2010 exchange between Haftbaradaran and Andy Gebert was “equivocal as it related to the issue of resignation or termination”.  The trial judge highlighted that “[d]aring Leo Gebert to fire him had worked to a limited degree … in the past”, and found that Haftbaradaran was “trying the same gambit on April 7th”.  In the view of the judge, “[q]uitting the property that day showed extremely poor judgment on [the winemaker’s] part, but a reasonable observer would see that as simply another element of his strategy”.  

Turning to Gebert’s words and actions on April 7, 2010, Mr. Justice Rogers found that they were “not intended to be and did not amount to termination of … employment”.  The trial judge found that Gebert “was entitled to instruct [Haftbaradaran] to leave his office that day” and used profanity in order to “emphasize his instruction” and get the winemaker to go back to his work.  The judge did not find Gebert’s comment to Haftbaradaran that “if he was so unhappy at St. Hubertus perhaps he should find a job somewhere else” to amount to termination of the employment contract. 

Mr. Justice Rogers, however, viewed Andy Gebert’s e-mail to Haftbaradaran in a very different light.  The trial judge found that the e-mail “change[d] the parties’ relationship” because it “spoke unequivocally of the parties’ working relationship coming to an end”.  He held: 

The e-mail made no offer of, and left no room for [Haftbaradaran] to participate in, rapprochement.  A reasonable observer, knowing what had passed between the parties earlier in the day, would have viewed the e-mail as a communication of [St. Hubertus’] decision to no longer put up with [the winemaker’s] behaviour. 

The trial judge concluded that St. Hubertus terminated Haftbaradaran’s contract of employment.  It did not have just cause to dismiss the winemaker from employment and, also, failed to provide him with appropriate notice or pay in lieu of notice.  

The judge awarded Haftbaradaran eight months of damages less the $1,803.65 he had already been paid by St. Hubertus.  This was substantial given that the winemaker had only been employed for 23 months. 

Some tips for HR professionals … 

Perhaps the most significant lesson to be learned from Haftbaradaran v. St. Hubertus Estate Winery Ltd. is that employers should not be too quick to accept what appears on its face to be a resignation.  Be sure to tread carefully.  Do not be quick to make assumptions or draw conclusions.  

Here are some additional tips: 

  1. Do not rush to accept the resignation.  Allow the employee at least a couple of days to reflect on his or her actions and a real opportunity to retract his or her resignation. 
  2. Seek written confirmation of the resignation – particularly if this is in keeping with the organization’s past practice. 
  3. Consider communicating with the employee and, if you do, document what is said.  Clarify that the employee’s words and actions were considered and deliberate and not simply the result of a hot head.   
  4. Depending on the circumstances, consider writing to the employee and explaining that you are accepting his or her resignation but also giving him or her two days to retract the resignation and return to work.

For further information, contact:
James D. Kondopulos
Partner (Practising through a law corporation)
Roper Greyell LLP
http://www.ropergreyell.com/james-d-kondopulos.html

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