Worker laid off from job servicing draft beer equipment during pandemic didn’t quit: BC court
A recent British Columbia Supreme Court decision reminds us that beer and COVID aren’t always a recipe for… resignation? Let’s “hop” into the decision.
The decision, Gent v. Askanda Business Services Ltd., 2025 BCSC 1278, is a wrongful dismissal case, commenced by Bradley Gent against his former employer, Askanda. Askanda was in the business of selling and servicing draft beer equipment. It is not clear if Gent was a “stout” man, but he certainly had the makings of a strong wrongful dismissal claim - he was 64 years old, had over 30 years with the company, and held a niche role.
The main issue in this decision was whether Gent was wrongfully dismissed or voluntarily resigned and retired. Gent said that he never retired and was still waiting for Askanda to call him back to work following a period of layoff due to COVID-19. Askanda said that Gent advised in May 2020 that he had decided to move to Langley, BC, with his family and retire.
Gent was the sole employee of Askanda, attending various pubs and restaurants one-to-four times a month to clear and service their draft beer equipment. In March 2020, COVID effectively shut down Askanda’s business. On or about March 18, Askanda temporarily laid off Gent and issued him a Record of Employment (ROE), indicating his expected date of recall was unknown. Gent applied for employment insurance and the Canada Emergency Response Benefit (CERB), receiving payments for the latter not long thereafter.
Intention to retire?
The parties next communicated on May 31. Gent says that he called Askanda to get a sense of when he might be able to return to work. Askanda’s evidence was that Gent said that he had decided to move with his family to Langley and that “he might as well just retire.” While the court accepted Askanda’s version of this call, it found that this evidence was not enough to establish that Gent intended to retire as of that date. Nor was it sufficient for Askanda to assume that Gent had unilaterally and voluntarily terminated his employment relationship with Askanda.
The court explained that a finding of resignation requires both subjective intent and objective conduct – i.e. did the employee intend to resign, and did their words and actions, objectively viewed, support that conclusion. There was no evidence of such a clear and unequivocal act by Gent in this case. Neither Gent’s alleged words nor his subsequent actions established a clear and unequivocal intention to resign at the end of May 2020, according to the court.
The court found that, while Gent may have intended to retire in the future, he did not intend to resign as of May 31 and neither his words nor his acts, objectively viewed, supported a finding that he resigned at that time.
The court found that Askanda was required to take some further step to clarify Gent’s intentions – “… it was incumbent on Askanda to inquire further as to Mr. Gent’s intentions, and to follow up in a timely way to confirm that information.”
Confirmation of resignation
The court referred to a previous decision, Bishop v. Rexel Canada Electrical Inc., 2016 BCSC 2351, in which that court emphasized the need to eliminate any uncertainty with regard to a resignation.
In Bishop, after a heated exchange between an employer and an employee, the employee said that he was “not coming back.” When asked if he was resigning, he replied “yes” and, when prompted by a further confirmation from the employer, he stated: “yes I’m done.” The employee even stated that he would draft a letter of resignation that night (but did not do so) and was told that his resignation was accepted. Despite these statements from the employee, the court in Bishop ruled that no resignation occurred because the employer had a duty to revisit and inquire about the employee’s statement of resignation after a “cooling off period” when the emotions of the exchange had subsided.
In Gent, the court found that Askanda was not entitled to rely on Gent’s equivocal statement without clarifying that it was being accepted as an indication of retirement and, importantly, clarifying as of what date. Gent did not express a clear and unequivocal intention to Askanda regarding his retirement plans, nor did Askanda take steps to follow up on this statement, including asking for clarification, confirming an effective date, or preparing a letter or revised ROE setting out Gent’s termination for reasons of voluntary retirement.
Having found that Gent was wrongfully dismissed, the court was then required to determine Gent’s termination date for the purpose of calculating the notice period. Gent, seeking the longest possible date, argued that the termination date should be dictated by s. 63(5) of the BC Employment Standards Act (ESA), which states that, where an employee is not recalled to work at the expiry of their temporary lay-off period, their termination is effective as of the date of their initial layoff - March 18, 2020, in Gent’s case.
Common law reasonable notice
However, the court stated that Gent could only rely on the ESA if he was seeking a statutory remedy, which he was not. Rather, the court referred to the common law principle that the termination date of an indefinite layoff is determined by the reasonable expectations of, and fairness to, the parties. After considering a number of factors, the court determined that the termination date was Sept. 1, 2021, which was the date that Gent would most likely have agreed to continue the layoff.
Ultimately, the court awarded Gent six months’ pay in lieu of reasonable notice, after having found there was no failure to mitigate.
This decision is a reminder to employers that when it comes to resignation, the court will require clear and unequivocal evidence that the employee objectively and subjectively intended to resign. This may require a “cooling off” period and written confirmation to demonstrate that the employee actually resigned.
Trevor Thomas is a co-founder and partner at Ascent Employment Law in Vancouver.
