Get it in writing if you quit or are terminated

When it comes to the clarity of a resignation or a termination, what’s good for the goose is good for the gander. Employers who claim that an employee has resigned need clear evidence. Employees who claim they have been terminated need it as well.
 
Barry had worked for a company as a CNC machine operator for eight years.  Barry was constantly campaigning for a raise. He regularly told the boss that he could make more fixing basements with his brother-in-law.   
 
When his boss went off for knee surgery for the summer of 2007, before he left, Barry told him that he might not be there when the boss got back.
 
Barry claimed that one morning that summer his temporary boss began to criticize the way he was doing a job. He said the boss became very upset, started screaming and shouting and all of a sudden said, “Get out!  You’re fired!” and then walked away. Barry left and went home.
 
Barry’s helper, who was working with him that morning, saw the boss approach Barry said he  heard the boss tell Barry to get out and go home. He said the boss seemed angry and was speaking loudly. He claimed Barry left without speaking to anyone and no one else was present but the three of them.
 
By the time Barry’s helper gave this evidence he was no longer employed with the company and admitted to being Barry’s friend.
 
Of course, that was Barry’s side of the story.
 
The temporary boss testified that there had been a number of mistakes with the work Barry had done the day before. When he approached Barry to speak about it, a consultant working with the company was with Barry. The boss said he asked Barry a number of questions to which all of the replies were, “I don’t know.” In frustration, he told Barry he should leave the machine he was working on and go back to work on his old machine. Barry said, “If you don’t like what I’m doing, fire me.” The boss just shook his head and walked away. He said Barry’s helper was not anywhere around.
 
The consultant had yet another story to tell. He said that Barry asked the boss, “You don’t like the way I work, do you?” The boss said, “No, I do not like it when there are mistakes.” Barry said, “That’s it, I’m out, I’m leaving” and walked away. He denied that Barry said anything like, “If you don’t like what I’m doing, you can fire me.” The consultant said the boss did not appear angry and did not speak in a loud voice.
 
The consultant talked to Barry before he left the building and told him he was being silly and to rethink his decision to leave.  Barry refused and left. The consultant claimed Barry’s helper was not present for any of these conversations. Another worker said he saw the consultant speak to Barry before he left.
 
Barry claimed that a few days later he had a telephone conversation with his regular boss (the one on disability leave).  Barry’s regular boss was off work all summer and said he never talked to Barry.
 
Barry testified that during a telephone call the temporary boss confirmed that he had fired him. That boss denied it  and claimed Barry said he was sorry about what he did but he had to do it. He invited Barry to come in and talk but Barry said that he already had a job to go to. Barry said that he would need more money to come back and that he was going to work in construction. He asked if he could come back if the construction job did not work out.
 
So, what do you think? Did Barry quit or was he fired?
 
The onus was on Barry to persuade a judge that he was terminated. The judge found out Barry lied on his resume to get another job. Barry was prepared to lie to get what he wanted.
 
Barry further harmed his credibility by having claimed to have spoken to his regular boss who was off work all summer for knee surgery and wasn’t even around.
 
The judge decided that if she was going to believe anyone, she was going to believe the consultant. Given Barry’s history of threatening to quit and everything else, Barry lost his case.
 
Unless a resignation or termination is in writing, it’s going to be up to a judge to guess who is telling the truth. They usually get it right but not always.. If you have an employee who resigns verbally, immediately email, fax or send by registered mail a letter which states, “I confirm that on today’s date you resigned your employment.  If we are mistaken, please advise immediately.” Or, if you are the employee who believes you have been terminated, “I confirm that you terminated my employment on today’s date.  If I am mistaken, please advise immediately.”
 
As long as you can prove the other party got that letter, in the absence of an immediate retraction, most judges will assume that silence means consent.
 
As published in the Hamilton Spectator, January 23, 2011
 
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com