Canadian Employment Law Today

April 8, 2020

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL ©2020 HAB Press Limited, a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under license by HAB Press Limited. CANADIAN EMPLOYMENT LAW TODAY is a trademark of HAB Press Limited. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photo- copying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 70318 4911 RT0001 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE info@keymedia.com www.employmentlawtoday.com 20 Duncan St. 3rd Floor, Toronto, ON M5H 3G8 President: Tim Duce Editor: Jeffrey R. Smith Email: jeffrey.smith@keymedia.com Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: fred.crossley@keymedia.com Phone: (416) 644-8740 x 236 Marketing Co-ordinator: Keith Fulford Email: keith.fulford@keymedia.com Phone: (416) 649-9585 HAB Press Ltd. Maternity leave reaches point of no return THIS INSTALMENT of You Make the Call in- volves a worker who was deemed to have re- signed when she didn't return at the end of her maternity leave. Bridget Gainey was hired to be a dispatcher for S&P Carrier, a trucking company based in Scotland, Ont., in February 2014. She was still in that position when she became pregnant in late 2015. Over the course of the first half of 2016, Gainey began feeling stressed at work and was worried it was affecting her pregnancy. On June 22, S&P gave her a letter stating that "all employees' future pay will be prorated to ac- count for any time absent from the office dur- ing business hours. She and other employees were required to notify management of up- coming known absences so it could decrease any disruption to the company's operations, and time taken for personal leaves and ap- pointments would be deducted from their fi- nal billed working hours. S&P also indicated that employees were not to use company business equipment — such as telephones and computers — for personal activities or non-S&P business. This letter added to Gainey's stress, as she had to leave the office occasionally for doctor's appointments. She had an appointment that very afternoon, after which her doctor placed her on stress leave. Gainey notified her man- ager about the leave and later provided a note from her doctor. The company instructed her manager to deal with her at "arm's length" dur- ing her stress leave. Gainey remained on stress leave until her maternity leave began in October. Her expect- ed return-to-work date following her mater- nity leave was on or around Oct. 15, 2017. In early November 2016, Gainey requested a letter of employment from her manager for her mortgage company, as she was moving into a new home. S&P provided the letter stat- ing she was a full-time employee on maternity leave. For the rest of Gainey's maternity leave, there was little communication between her and the company. On Oct. 3, 2017, Gainey emailed her man- ager to find out the best way to proceed for her return to work. The manager replied the next day asking when her scheduled return date was. He wanted her to return soon as the com- pany was understaffed. Gainey responded that she was scheduled to return "around the middle to the end of Octo- ber" and asked what date worked best for the company. She also asked again about how to proceed and if she needed to provide any doc- umentation. She wanted to set up a date when a manager was present to get her reacquainted with everything. Gainey's manager didn't reply, as she had "answered a question with a question." He wanted a simple date from Gainey so they could make arrangements. A week later on Oct. 10, Gainey emailed her manager again to follow up, saying she needed to make childcare arrangements before she went back to work, so she needed to know what was happening. Her manager again didn't respond as Gainey still didn't provide her return date. On Oct. 16, Gainey called S&P and left a voicemail stating she intended to return to work. She didn't go into the office because management was often not in the office and she felt she might miss them. However, her manager wasn't made aware of the voicemail. More time passed and Gainey didn't hear back from S&P. She wasn't sure what to do. No further communication passed between her and S&P until Nov. 21, when the company sent her a letter that stated that she hadn't provided a return date and had not been in contact for more than a month. As a result, S&P considered her to have resigned her employment and asked her to return all company property by Nov. 24. YOU MAKE THE CALL Was the worker unjustly dismissed? OR Did the worker resign from her employment? IF YOU SAID the worker was wrongfully dis- missed, you're right. The adjudicator noted that resignation had two elements: a subjec- tive intention to leave employment and "ob- jective conduct manifesting a continuing ef- fort to effect such intention." The adjudicator found that Gainey's conduct did not support the idea that she intended to resign after her expected return to work after maternity leave. All of her emails to S&P and her voicemail indicated that she wanted to continue working with the company, but her manager stopped communicating with her, said the adjudicator. "Inexplicably, Ms. Gainey had not heard back from the employer since her Oct. 4 email," the adjudicator said. "While [her manager] indicated he was instructed to deal with Ms. Gainey during her leave at arm's length, that arose in the context of stress leave. However, in October 2017, Ms. Gainey was returning to work from maternity leave, a materially different context." The adjudicator determined that Gainey didn't resign her employment and she intended to return after her leave. It was S&P that unjustly ended the employment relationship through its unilateral action of sending the November 2017 letter. For more information, see: • Gainey and S&P Carrier Ltd., Re, 2019 CarswellNat 2186 (Can. Labour Code Adj.).

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