Canadian Employment Law Today

Canadian Employment Law Today | 3 Cases and Trends Retiring worker changes mind too late Worker thought she could rescind her retirement notice, but once employer accepted it there was no obligation to allow her to rescind it BY JEFFREY R. SMITH AN ONTARIO worker who thought she could change her mind about retiring and rescind her retirement notice is out of luck and out of a job. Elisabeth English, 66, was a senior cus- tomer relationship manager for group sav- ings and retirement at an Ontario branch of Standard Life, an insurance company based in Montreal, starting in March 2006. In 2015, Standard Life merged with anoth- er insurance company, Manulife Financial Corporation. Soon after the merge, Manulife informed its employees that all of its customer infor- mation would be converted to a new com- puter system. e conversion would begin in January 2016 and progress over time un- til completed. English was concerned the new computer system would be difficult for her to learn, so she met with her supervisor on Sept. 22, 2016, and told him she had decided to retire effective Dec. 31. She gave the supervisor a written notice of retirement that she had typed up herself that stated her planned retirement date and she would "entertain a part-time position, two or three days per week... but I understand if it is not (possible)." English's supervisor asked her if she was sure she wanted to retire and told her that she could rescind or reconsider her resig- nation if she changed her mind during the meeting, but English replied that she had had some doubts earlier, but had spoken to "a number of people" and she was now sure she wanted to retire. e supervisor informed the human resources department about the retirement notice and Manulife began to develop a plan to prepare for Eng- lish's retirement. e plan included elimi- nating her position, moving some of her subordinates to another office that needed more capacity, and distributing her casel- oad to other customer relationship manag- ers in the region. Over the next few days, English told some of her co-workers about her retirement plans and agreed to have her supervisor an- nounce it at a staff meeting. Company scrapped new computer system; worker changed her mind Less than three weeks later, on Oct. 11, Manulife announced that it was suspend- ing the computer data conversion indefi- nitely. As a result, English decided to with- draw her notice of retirement and asked her supervisor if anything had progressed with regards to it. On Oct. 26, she formally informed her supervisor that she was re- scinding her notice of retirement because the computer conversion was no longer proceeding. Her supervisor acknowledged her wish, but was unable at the time to con- firm anything. e supervisor advised the human re- sources department about English's request to rescind her retirement notice and ad- vised it to respond. English didn't follow up with any written communication to Manu- life confirming her intentions. After a series of back-and-forth com- munication between the supervisor and the human resources department, it was determined Manulife would continue to honour English's notice of resignation. e supervisor informed English, who said she was surprised since she had been told she could "always rescind her notice of retire- ment if she changed her mind." e super- visor responded by saying the company had accepted her retirement and would be hon- ouring the request on Dec. 31. English worked until Dec. 12, when Manulife told her she didn't need to come back to work. She then filed a complaint for wrongful dismissal demanding payment of 16 months' salary in lieu of notice. She ar- gued that her supervisor told her she could rescind her retirement notice and her deci- sion to retire was based on her not wanting to retrain for the announced computer con- version, which Manulife later suspended indefinitely. Manulife argued that the notice of re- tirement was clear and unequivocal, Eng- lish didn't communicate the reason for her decision to rescind the notice, and it had already started staffing changes to prepare for her retirement. e Ontario Superior Court of Justice found English's letter of retirement was a clear and unequivocal notice of her decision to retire — she typed it up herself, she came to the meeting with her supervisor with the letter, and there was no evidence there was any persuasion for her to make the decision. e court also found that while the supervi- sor had told her she could rescind her notice of retirement while they were discussing it during the Sept. 22, 2016, meeting, English had responded by reiterating her decision. ere was no indication the offer to rescind was valid up until her intended retirement date of Dec. 31, and the supervisor accepted her notice by the end of that meeting, said the court. Employer didn't accept rescission of resignation e court also found the supervisor did not indicate he accepted her rescission a few weeks later and English didn't formally notify Manulife that she had changed her mind — which was important since the company had initiated plans to go into ef- fect upon her retirement. e court determined that English's no- tice of retirement on Sept. 22, 2016, was a clear and unequivocal "offer by (English) to retire as an employee effective Dec. 31, 2016" and this offer was accepted by her su- pervisor. Once accepted, the offer became a binding contract between English and Manulife, the court said. e court noted that Manulife could have allowed English to rescind her notice of re- tirement once she found out the computer conversion wasn't going forward, but it wasn't obligated to do so once it accepted her retirement offer; nor did it indicate it accepted her offer to rescind the notice. e company may have been silent in response to English's verbal request, but "silence does not equate to acceptance," said the court. "(Manulife) could, perhaps, have han- dled the situation better, by advising (Eng- lish) in mid- or late October that her notice of retirement was binding on her," said the court. "ere is, however, nothing in the ev- idence that would suggest that (Manulife) led (English) along to believe that her inten- tion to resile had, in fact, been accepted by the (company)." e court dismissed English's complaint, finding the retirement agreement was binding and Manulife had no obligation to allow English to rescind it — nor did it take any action to indicate it accepted her inten- tion to rescind it. e court also noted that had there been wrongful dismissal, English would be entitled to 12 months' salary in lieu of notice, not the 16 months English wanted in her claim. For more information see: • English v. Manulife Financial Corporation, 2018 CarswellOnt 14425 (Ont. S.C.J.). Canadian HR Reporter, a Thomson Reuters business 2018 The worker didn't follow up with any written communication confirming her intentions.

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