Date Issued: January 29, 2024

File: SC-2022-010021

Type: Small Claims

Civil Resolution Tribunal

Indexed as: 548981 B.C. Ltd. v. Reyes, 2024 BCCRT 83

Between:

548981 B.C. Ltd.

Applicant

And:

WENDY GARCIA REYES

Respondent

REASONS FOR DECISION
Tribunal Member:	Sarah Orr

INTRODUCTION

1.      This is an employment dispute. Wendy Garcia Reyes (employee) worked for 548981 B.C. Ltd. (employer) between June 2018 and February 2022. The employer says the employee breached their employment contract by failing to give 3 weeks’ notice of their resignation. The employer claims $2,400 in damages, which it says is equivalent to 3 weeks of the employee’s wages.

2.      The employee says they gave the employer 2 weeks’ notice of their resignation, which the employer agreed to in writing. They say the employer terminated their employment later that day. They say they do not owe the employer anything.  

3.      The employer is represented by its principal, and the employee is self-represented.

JURISDICTION AND PROCEDURE

4.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). Section 2 of the CRTA states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness.

5.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice.

6.      Section 42 of the CRTA says the CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

7.      Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

Cash at Employee’s Desk

8.      In its Dispute Notice, the employer asks the employee to prove that cash left at their desk belonged to them. However, the employer does not specify the amount of cash or who they say took the cash. The employer also does not ask for any remedy related to the cash. For these reasons, I find the employer has not sufficiently raised a claim about cash left at the employee’s desk in this dispute, so I decline to address the merits of the allegation in this decision.

Other Allegations

9.      In their submissions, the employer alleges that the employee’s poor work performance created a toxic work environment and a “general toxic attitude toward customers and ownership”. However, the employer did not raise this in the Dispute Notice, and they do not seek any remedy related to these allegations. I find the employer has failed to sufficiently raise this claim in this dispute, so I decline to address the merits of the allegation in this decision.

Employment Standards Complaint

10.   During facilitation, CRT staff learned that the employee had filed a complaint with the Employment Standards Branch (ESB) about the employer, and the parties were awaiting the ESB’s decision. The ESB has exclusive jurisdiction over entitlements under the Employment Standards Act (ESA). CRT staff referred this dispute to a vice chair to determine whether the CRT should refuse to resolve it under CRTA section 11(1)(a). That section allows the CRT to refuse to resolve a claim if it has already been resolved or would be more appropriately resolved in another legally binding or dispute resolution process.

11.   On July 28, 2023, the vice chair issued a preliminary decision, which is not binding on me. The vice chair found that the employee’s ESB complaint was about whether the employer owed them wages or compensation for length of service, and who was entitled to the cash left at the employee’s desk. The vice chair found that the ESB would likely make findings of fact about some of the same issues that are before the CRT in this dispute, such as whether the employer terminated the employee’s employment after they gave their resignation notice. The vice chair found that if the ESB decided these issues, the doctrine of abuse of process could bar the employer’s CRT dispute.

12.   For these reasons, the vice chair decided to pause this CRT dispute until the CRT received a copy of the ESB decision. On September 5, 2023, the ESB issued its decision. On October 5, 2023, the employee submitted the ESB decision to the CRT, and this CRT dispute resumed. I address that decision as part of my analysis below.

ISSUES

13.   The issues in this dispute are:

a.    Is the employer’s wrongful resignation claim an abuse of process?

b.    If not, is the employer entitled to $2,400 for the employee’s alleged breach of their employment contract?

EVIDENCE AND ANALYSIS

14.   As the applicant in this civil proceeding, the employer must prove its claims on a balance of probabilities, which means more likely than not. I have read all the parties’ evidence and submissions but refer only to what I find relevant to explain my decision.

15.   The following background facts are undisputed. In June 2018, the employee signed an employment contract with the employer. The contract required the employee to give 3 weeks’ written notice of their intention to leave their employment. On February 4, 2022, the employee emailed the employer notice of their resignation. The employee offered to resign as of either February 15 or 18, 2022. The employer responded that day in 2 separate emails agreeing to February 18, 2022, as the employee’s last day. Later that evening, the employer emailed the employee terminating their employment as of February 4, 2022.

16.   On February 6, 2022, the employee filed their ESB complaint seeking compensation for length of service under the ESA. On September 5, 2023, the ESB issued its decision, which is final. The ESB found the employee provided notice of their resignation to the employer on February 4, 2022, which the employer accepted. The ESB found the employer terminated the employee’s employment later that day. It found the employer did not initially raise any concern that the employee failed to give 3 weeks’ notice of their resignation. The ESB found that there are no requirements under the ESA for employees to provide resignation notice to an employer, and dismissed the employer’s allegation about the employee’s insufficient notice as a contractual issue that did not constitute just cause for termination. The ESB addressed the employer’s other allegations about the employee’s conduct and found the employer did not have just cause for termination. The ESB awarded the employee the equivalent of 3 weeks’ wages as compensation for length of service.

Is the employer’s wrongful resignation claim an abuse of process?

17.   A duplicate proceeding may be an abuse of process if allowing the new proceeding would violate the principles of economy, consistency, finality, and the integrity of the administration of justice (see Toronto v. C.U.P.E., Local 79, 2003 SCC 63). An abuse of process may occur where the litigation is essentially an attempt to relitigate a claim that has already been determined in another court or tribunal proceeding (see Skender v. Farley, 2007 BCCA 629).

18.   However, the ESB only has authority to investigate and decide complaints about alleged breaches of the ESA. The ESA does not require an employee to provide written notice of their resignation. This means the employer could not bring its damages claim for wrongful resignation to the ESB. The ESB made no findings about whether the employee breached the contract by failing to give enough notice. So, if I refused to resolve the employer’s claim, it would be deprived of the opportunity to seek damages for the employee’s alleged breach of contract. Although the ESB made findings of fact in its decision that overlap with the facts relevant to this dispute, those facts are undisputed. For these reasons, I find the employer’s claim is not an abuse of process, so I must resolve this CRT dispute on its merits.  

Is the employer entitled to $2,400 for the employee’s alleged breach of their employment contract?

19.   As noted above, the employee’s employment contract required them to provide the employer with 3 weeks’ written notice of their resignation, which they undisputedly did not do. Technically, this is a breach of the employment contract. However, the employer undisputedly accepted the employee’s 2 weeks’ notice of their resignation, so I find the employer accepted the employee’s breach of contract. The employer also undisputedly terminated the employee’s employment later that day.

20.   Even if the employer did not accept the employee’s breach or terminate their employment, they are required to prove damages. I find they have failed to do so. The employer says the employee was mainly responsible for ICBC customers and general ICBC tasks and was a “key employee”. However, the employer provided no evidence of any losses they suffered because the employee failed to give 3 weeks’ notice. For these reasons, I dismiss the employer’s claim.  

21.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. Since the employer was unsuccessful, I find it is not entitled to reimbursement of its CRT fees. The employee did not pay any CRT fees, and neither party claimed any dispute-related expenses.

ORDER

22.   I dismiss the employer’s claims, and this dispute.