Executive Summary: Key Legal and Evidentiary Issues

• Dispute centered on whether Mr. Gent resigned or was wrongfully dismissed after a COVID-related layoff.

• Mr. Gent’s long-standing employment and intention to retire at age 65 complicated the determination of wrongful dismissal.

• The Court found no clear and unequivocal resignation was communicated to the employer.

• Askanda failed to recall Mr. Gent or seek layoff extension under the ESA, constituting constructive dismissal.

• Damages were limited due to Mr. Gent’s stated plan to retire shortly after the termination date.

• Credibility of both parties was mixed, with the Court relying heavily on conduct and documentation rather than testimony.

Facts and outcome of the case

Mr. Bradley Hunt Gent had worked part-time for Askanda Business Services Ltd. since 1987, primarily servicing draft beer equipment in pubs and restaurants. He was laid off in March 2020 during the COVID-19 shutdown. The company did not recall him when business resumed, leading Mr. Gent to file a claim for wrongful dismissal. Askanda’s owner, Jeremy Hollands, asserted that Mr. Gent had resigned in May 2020, stating he was moving to Langley and intended to retire.

The trial turned on conflicting testimony about this alleged resignation call. Mr. Gent denied resigning and claimed he had waited to be recalled. Mr. Hollands insisted Mr. Gent stated he might as well retire. The Court assessed the credibility of both men and found inconsistencies in their accounts. The judge concluded that while Mr. Gent may have made ambiguous remarks, there was no clear resignation, nor did Askanda follow up or issue a revised Record of Employment to reflect a retirement.

As Mr. Gent was never formally recalled and no layoff extension was agreed upon, the Court found this constituted a constructive dismissal at common law. Though the statutory termination date under the Employment Standards Act would have been August 30, 2020, the judge found the more equitable termination date to be September 1, 2021—the date Mr. Gent’s EI benefits ended and he would reasonably have expected a return to work.

In assessing damages, the Court recognized Mr. Gent’s intention to retire at age 65 in February 2022. This limited his entitlement to only six months’ notice. Using his average annual earnings of $29,000, the Court awarded $14,500 in damages.

The claim for punitive damages was rejected. The judge found Askanda’s actions fell short of the malicious or egregious conduct required for such an award. However, the Court acknowledged that Askanda had failed to comply with ESA obligations and did not offer any statutory or common law compensation until litigation was initiated.

Mr. Gent was deemed the successful party. Although no costs were awarded at judgment, the parties were invited to schedule a hearing on costs within 30 days.