In Carroll v Purcee Industrial Canada (2017 ABQB 211) Madam Justice Peantelechuk was faced with the situation where an employee repeatably told his employer that he would resign if they could work out a “termination on professional terms” which involved payment of commissions owing, severance and moving expenses.
Rather than engage in these discussions, the Employer simply purported to accept his resignation.
This is how the Court dealt with the issue :
50 Importantly, each time Mr. Carroll offered to resign his employment, the offer was coupled with an invitation to negotiate the terms of his departure, including a severance package. There is no evidence before me to demonstrate that Mr. Carroll ever indicated an intention to resign on a specific date without reference to a severance package. This is important in two respects. First, it is difficult in such a circumstance to argue that the resignation is clear and unequivocal when it is tied to a proposal for terms of severance. But secondly, it calls into question an employer’s ability to accept that resignation, if in fact it is valid, if the employer does not also accept the terms proposed by the employee. Here, Mr. Carroll’s resignation was not accepted as offered by Mr. Carroll in his May 31, 2013 email. It was purportedly accepted on completely different terms: Oxman v Dustbaine Enterprises Ltd (1988), 32 OAC 154, 23 CCEL 157 (Ont CA) at paras 6-7.
51 At any time following receipt of Mr. Carroll’s offer to negotiate the terms of his departure, Mr. Peterson could have confirmed whether Mr. Carroll truly intended to resign, or otherwise negotiate the terms of his departure. Instead, Mr. Peterson’s June 7, 2013 letter purports to accept Mr. Carroll’s resignation without further discussion and on completely different terms than those offered by Mr. Carroll.
52 Considering all of the circumstances before me, I conclude that Mr. Carroll has satisfied the onus of proving that he was dismissed. His resignation was not clear and unequivocal, but rather an invitation to discuss the terms of his exit from the Defendant companies and in any event, the employer purported to accept his resignation on completely different terms.
The Court went on to award the 41 year old Regional Manager with 4 years and 8 months service a notice period of 8 months.