Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2019 More Cases and IBM, but IBM remained firm. He made inquiries to the Ontario Employment Stan- dards Branch about his options, and he came to believe that he would have to leave his em- ployment before he could file a complaint. Devost felt he was being constructively dismissed, so he decided to quit his job and lodge a complaint afterwards. On Oct. 31, Devost told IBM it would be his last day with the company. In a letter, he explained that he was leaving immediately because he didn't want to spend the next few months working in an environment that made him feel bitter. He could have contin- ued to work from home during that period but he didn't trust IBM enough to continue with the company for any period of time. A few weeks after resigning from IBM, Devost found another job at a lower rate of pay. He filed a complaint with the Employ- ment Standards Branch requesting an or- der for severance pay under the Ontario Employment Standards Act — which has a clause allowing an employee who resigns after receiving notice of termination to still receive severance pay — but an employment standards officer reviewed his situation and declined to issue such an order. Devost applied to the Ontario Labour Relations Board to review the officer's deci- sion, arguing that IBM constructively dis- missed him and he was entitled to severance pay. IBM countered that it gave Devost six months' notice of termination and he re- signed his employment before the end of the notice period. e board agreed with IBM that the com- pany provided notice of termination greater than the legislative minimum — six months. It found that while it requested Devost relo- cate, Devost refused this request and this led to the company to provide notice of termi- nation. Once the notice had been provided, there were no changes in the terms and con- ditions of Devost's employment that could constitute constructive dismissal during the six-month working notice period. Once the notice had been given, Devost was allowed to continue to work from home under the same conditions he had been for five years, said the board. "While the situation may have amounted to a constructive dismissal had IBM actually required (Devost) to relocate to Ottawa with- out providing adequate notice of the change, this is not what occurred in the present case," said the tribunal. "Instead, the proposed move from Quebec to Ottawa never took place. Once (Devost) advised IBM that he would not accept the proposed change, IBM opted to give him working notice that his employ- ment would be terminated effective March 15, 2017, and never required him to relocate to Ottawa at any point prior to that date." e board found that Devost's circum- stances involved "an actual termination of employment" rather than constructive dis- missal. e Ontario Employment Standards Act, 2000 allows for the possibility of an em- ployee to resign and still receive termination pay after being given notice of termination from the employer, but the act requires the employee to give two weeks' notice of res- ignation during the statutory notice period. Devost resigned the day he provided notice and therefore wasn't entitled to severance pay under the act, said the board. Devost's application for reconsidera- tion of his severance pay entitlement was dismissed. See Devost v. IBM Canada Ltd., 2018 CarswellOnt 19880 (Ont. Lab. Rel. Bd.). Worker felt bitter after receiving termination notice « from NO SEVERANCE on page 1

• Cover