BC Court of Appeal on Mitigation, Quit v/s Dismissal, and Damages for Bad Faith Dismissal

On February 18, 2011, in Beggs v. Westport Foods Ltd., 2011 BCCA 76 the BC Court of Appeal handed down reasons case which involved issues which often arise in a wrongful dismissal claim.

The plaintiff was a long service permanent part-time clerk in the defendant's grocery store. She had in the past taken substantial periods of time off work for personal reasons and had returned to work without difficulty. After a fire at her residence, the plaintiff became disabled due to anxiety and depression. She stayed off work, without telling her employer why, and after a month the employer issued an ROE on the basis that she had quit.

The plaintiff succeeded.

The court considered the appropriate legal test as to whether employment has ended by a resignation (a quit) or an actual dismissal. The court said that a dismissal must be proven on an "objective" standard but a quit involves both an objective and subjective element. That is, there must be satisfactory proof that leads the court to conclude the employee intended to quit. That was lacking in this particular case.

The court also decided that the employer's offer to have the employee return to work was not an offer which the employee was required to accept in the circumstances, referring to Evans v. Teamsters Local Union No. 31, 2008 SCC 20, [2008] 1 S.C.R. 661. The essential reason the court decided the possibility of a return to work had been effectively foreclosed by conduct of both parties and their lawyers.

The BCCA overturned an award of damages by the trial judge on the basis of bad faith conduct at the time of dismissal. The Court referred to Honda Canada Inc. v. Keays, 2008 SCC 39 for the proposition that in suitable circumstances, employees may be awarded damages as a result of the bad faith conduct of the employer at the time of discharge, but found these circumstances lacking in the particular facts. On the facts found by the trial judge, there was no malice or lack of good faith on the part of the employer. The dismissal was essentially found to be the result of a failure to communicate.