Can A Text Message Following A Heated Exchange Result In Termination? feature image

Can A Text Message Following A Heated Exchange Result In Termination?

When people are in the middle of an argument, they may say things that they later regret. In a recent case before the Provincial Court of Alberta, an employer learned the hard way that telling an employee they no longer needed to come to work was enough to determine that the employee had been fired.

Events leading up to the termination

The employee started work as a safety officer with the employer in May 2012 after being approached by the employer to help them with issues relating to transportation safety. The employee created a safety program that included training and other activities meant to ensure a safe working environment.

In 2014 there was a change in the management structure of the employer, which resulted in the employee no longer reporting to the co-owner of the company, but at the same time receiving a promotion to Safety Manager. Later in the year, the employer was hired to do a job, which required the production of a safety manual. The employer testified they asked the employee to ensure water pumping was included in the safety manual. Meanwhile, the employee testified that no such request was made, and that while it could have easily been done, there would have been no need because the employer did not do that type of work. Regardless, the job was completed without incident.

The employer, who worked in the oil and gas industry, laid off some employees in the fall of 2015. As a result, the employer was asked to step into the role of Rental Manager, something the employer admitted he was over his head in after accepting the position, in part because of the disorganization of the department.

The employer was able to secure what it described as a “massive” job with an energy company, where the co-owner, who had interests in other companies, was asked to provide all the work under one Master Services Agreement. The various companies were to pool their resources, but work under a single contract. The employer testified that it once again asked the employee to include water pumping safety in its manual. The employee, meanwhile, testified he did not recall if such a request was made, but in either case, it was not necessary since it was covered in the safety manual of another of the co-owner’s companies.

The termination

The employee, who would testify that he was focused on his new position, went on vacation for the first part of November 2015.  When he returned on November 17, he received a call from the co-owner who asked him about the inclusion of water pumping safety procedures in the safety manual. Both parties admitted that the conversation got heated, with the employee stating the employer used an expletive before handing on up him. Shortly thereafter the co-owner sent the employee a text stating, “Don’t bother coming in either I’ll look after all this k that your two weeks. Thanks for your services have a good day.” The co-owner later admitted he sent the text in the heat of the moment.  The employee responded by cleaning out his office. His work email was disabled the next day.

While other employees of the employer reached out the employee to offer advice, including that the co-owner was acting emotionally and he should try to apologize, he was not ever offered his job back. The employee chose not to reach out to the co-owner and he was eventually provided with a termination letter, which stated he quit, and record of employment on November 20, 2015.

Claims of wrongful dismissal

The employee claimed he was a victim of wrongful dismissal. He pointed to the co-owner’s text, stating the language was clear and was supported by the termination letter, which was not followed by an offer to return. The employee, however, submitted the text was not a clear and unequivocal dismissal, and that the employee refused to return to work to discuss the matter, all of which amounted to him quitting after two weeks.

The court summarized the test for determining whether an employee was terminated is “given all of the surrounding circumstances, would a reasonable person have understood the defendant’s statements to mean that the Plaintiff was dismissed. The test is an objective one and the burden lies upon the plaintiff to prove on a balance of probabilities that he was dismissed.”

The court found the employee satisfied the test, writing “It is clear, not only from the text sent by (the co-owner) but also confirmed by his evidence that he fired the (employee). The (employer) never resiled from its position, it never unconditionally offered the (employee) his job back but merely invited the (employee) to return to try and discuss the matter.” The court also took note of the employer’s closing of the employee’s email account.

The next issue for the court to determine was whether the employee’s termination was with or without cause. The company argued they had cause to fire the employee due to his failure to include the water pumping procedure in their safety manual. In order to have terminated the employee with cause, the employer would have to prove, on a balance of probabilities, that the misconduct was of such a serious nature that the employment relationship could no longer be sustained. The court found the employer was unable to discharge this burned, stating the employee’s actions were “completely out of proportion to the conduct of the (employee).”

The court, having found the employee was terminated without cause, determined him to be entitled to four months of pay in lieu of notice, amounting to $28,000 in damages.

At HMC Lawyers we advise both employers and employees about employment law issues, including those involving wrongful and constructive dismissal. Our experienced and dedicated team of employment lawyers have over 130 years of cumulative experience. We provide our clients with the legal advice they need to make informed decisions that support their ultimate goals. Please call us at 403-269-7220 or reach us online to talk to us today.

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