Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2018 More Cases Employee's concerns over company ethics not a resignation: Board Worker said her own morals conflicted with company's, but said multiple times she could still do her job and didn't want to quit BY JEFFREY R. SMITH A NEW BRUNSWICK worker who ex- pressed her displeasure with her employer also clearly indicated she didn't intend to re- sign, despite the employer saying it accepted her resignation, the New Brunswick Labour and Employment Board has determined. Katie Murray started working for 3D Property Management, a company that manages mostly residential properties in Saint John, N.B., on March 13, 2015, as an office clerk. Her job duties included collect- ing rent from tenants of 3D's properties and administrative work in the company's office. Murray was also a tenant, renting an apart- ment from 3D, so she paid her rent to anoth- er office clerk in exchange for a receipt. In October 2017, one of Murray's friends who also rented one of 3D's properties re- ceived a notice of eviction. Murray agreed to bring in a portion of the rent the friend owed to the office so the friend didn't have to. On Oct. 20, she came in before the start of her shift to make the transaction. Murray asked a co-worker to take her money to pay her friend's rent, but the co- worker refused and told her to collect her own money. Murray said she wasn't pre- pared to do that and someone eventually took the money. Shortly thereafter, Murray began her shift. A short time later, the supervisor arrived at 3D's office and the co-worker who had refused to collect Murray's money asked if they could go have a coffee. e supervisor consented and during their coffee meeting, the co-worker expressed frustration with Murray. When they returned, the supervi- sor brought Murray a coffee and asked to see her in his office. Employee expressed concerns At the beginning of the meeting, Murray asked the supervisor, "Are we going to dis- cuss you firing me now?" Over the course of the one-hour meeting, Murray began to feel as though the company's ethics and morals were at odds with her own and wanted the supervisor to "open his eyes" and change the way he dealt with tenants. She became emotional and requested a termination let- ter, which the supervisor refused to give her. Murray asked him if she should go home and the supervisor agreed. Murray left the office, picked up her belongings from her desk and went home. Soon after, the supervisor emailed Murray thanking her for her time and stating that "I accept your resignation effective immedi- ately. e reasons you outlined are ones that I disagree with however when you say that you absolutely cannot continue to work here, that indicates to me that (your) resignation is the best solution for everyone involved." Murray was "flabbergasted" by the email and quickly responded that she was defi- nitely not resigning from her employment. She agreed that she didn't want to work at 3D due to "moral and ethical reasons" but believed she could still fulfill her job duties. She also said if the company was ending her employment "it must be a termination as I did not resign." e only response from the supervisor was a text message asking if he could drop off a mattress Murray had loaned him for his son to use at boy scout camp and collect her keys to the office. Murray agreed and neither of them mentioned that morning's events again. e same day, Murray called the New Brunswick Employment Standards Branch, which advised her not to return to work. On Oct. 31, Murray received a record of employment (ROE) stating that the reason for issuing was that she had quit. is led to her employment insurance claim being de- nied, though it was later accepted because her doctor provided a letter describing a compassionate reason for granting her pay- ments. Murray filed a complaint and an employ- ment standards officer investigated her situ- ation. e officer found 3D had terminated Murray's employment and issued an order for 3D to pay her wages in lieu of notice plus vacation pay — totalling $1,221.55. 3D maintained that Murray had quit her job and appealed the order to pay to the board. e board noted that the established test for determining if an employee had quit had both a subjective and objective element. e board found that while Murray ex- pressed concerns to the supervisor in the meeting about a perceived lack of morals and ethics in the company and was emo- tional, she clearly indicated she intended to continue working and did not want to resign. In addition, after the supervisor emailed her about accepting her resigna- tion, Murray responded by emphasizing that she was still capable of fulfilling the duties of her position. Murray's clear com- munication did not meet the subjective ele- ment of any intention to resign on her part, said the board. e board also found that from an objec- tive perspective, an outside person could not reach the conclusion that Murray wanted to quit. She stated several times in her email to the supervisor that she wasn't resigning, nor was there any "express statement or action by Murray confirming she was quitting, nor was there a clear and equivocal act to carry out that intention," said the board. e board upheld the employment stan- dards officer's determination that 3D had terminated Murray's employment and the company must pay her wages in lieu of no- tice of termination, along with vacation pay. For more information see: • Murray and 3D Property Management Inc., Re, 2018 CarswellNB 273 (N.B. Lab. and Emp. Bd.). WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as navigating benefits during the notice period, discipline and dismissal for off-duty conduct, Ontario's employment standards changes, and diversity in the workplace. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. Worker requested a termination letter, but later said she wasn't quitting

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