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Johnny Paycheck Would Have Been Proud

In his classic 1977 cover of the country song, “Take This Job and Shove It”, Johnny Paycheck gave voice to the pent-up frustrations of employees. Perhaps no employee has ever said “I ain’t workin’ here no more” with more panache than JetBlue flight attendant, Steven Slater.
 
Slater’s life went from normal to wildly abnormal in the span of a few moments last week. Pushed beyond his personal breaking point, he apparently commandeered a jet’s public address system, cursed out a passenger, grabbed some beer, deployed the emergency exit slide, and slid off towards his 15 minutes of fame.
 
What has happened since is indicative of the instant messaging, instant video uploading, instant fame age in which we live. Slater has been all over the internet and more conventional media. 
 
The day after his unusual “deplaning” I saw that a television channel was asking whether Slater should have his own reality show. Talk about going, literally, from nobody to working class hero overnight. 
 
Employer JetBlue is, seemingly, still trying to figure out what to do with Slater. His actions were outrageous, perhaps highly dangerous, and definitely not ones which are to be encouraged.
 
The scenario of an employee blowing up and stomping (or sliding) off the job is one which courts deal with on a relatively frequent basis. The question which judges – in Canada, at least – have to answer is “when can an employer rely on an employee’s apparent intention to resign from his employment?”.
 
Ideally, an employee will provide a letter of resignation and then, on the designated day, cease to provide employment services. In such an instance, there would be little difficulty concluding a voluntary resignation has occurred.
 
Many times, however, a resignation or quit is the result of a momentary, emotional blowup. The employee, in a rush of anger, declares, “That’s it! I’m out of here!” and storms out of the workplace (although not usually by way of an inflatable emergency slide).
 
The employer accepts, and adheres to, the initial statement of resignation. Then the employee returns (after having cooled off) and declares he never had any actual intention of quitting. 
 
This is when lawyers and judges are called upon to assist in determining the impact of what happened. And, true to form, media updates on Slater’s situation are indicating that he now wants to return to the skies.
 
When the fact of the resignation is in doubt, an objective test must be applied to determine whether, in all the circumstances, a reasonable person would understand by the employee’s statement that he had resigned. A valid and enforceable resignation must be unequivocal, meaning it must objectively reflect either an intention to resign or conduct clearly indicating such an intention.
 
Even when an employee has made an unequivocal declaration of resignation, in some circumstances this cannot be taken at face value. Some time for the parties to cool off, gather their thoughts and reconsider might be the most reasonable and fair response.
 
Slater’s situation would have perfectly lent itself to the verbal skills of another Johnny, the late celebrity lawyer Johnny Cochran. Picture the (televised, of course) trial, with Cochran instructing his client to try and fit his posterior into the actual JetBlue emergency slide: “If the slide don’t fit, the man didn’t quit!”
 
Robert Smithson is a partner at Pushor Mitchell LLP practicing exclusively in the area of labour and employment law. For more information about his practice, log onto www.pushormitchell.com