Canadian Employment Law Today

STUART McKELVEY HALIFAX Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2018 2 | November 21, 2018 with Brian Johnston Ask an Expert Making a retirement notice official Question: If an employee expresses an intention to retire, what is needed to make it official? Can the employee rescind a retirement notice within a certain amount of time? Answer: is is a difficult question because employers do not have direct control out- side of work. e first question is whether the employer has policies on off-duty con- duct or harassment, and whether the con- duct could spill over to the workplace. Most policies tend to be limited to the workplace. If there is no off-duty policy, the issue becomes whether the employee has done something that would impact the work relationship or environment. It is an implied term of the contract of employ- ment that the employee will not do any- thing prejudicial to the employer's interests or reputation. us, an employee will not be free from scrutiny for conduct which occurs off-duty, if it affects the employer's reputation or interests. Generally courts will look for the follow- ing to assess the appropriateness of disci- plinary action for off-duty conduct: • Whether the employee's conduct harms the employer's reputation or interests • Whether the employee's behavior renders the employee unable to perform their du- ties satisfactorily • Whether the employee's behavior leads to refusal, reluctance or inability of other employees to work with the employee • Whether the employee is guilty of a seri- ous breach of the Criminal Code, causing injury to the general reputation of the em- ployer and its employees • Whether the employee's off-duty con- duct makes it difficult for the employer to properly carry out its functions or ef- ficiently manage its work and efficiently direct its workforce. Harassment outside of work may spill into the workplace. e onus is on the employer to show misconduct to justify disciplinary action. Employers should conduct investiga- tions for off-duty conduct to determine and support any disciplinary actions. Similarly, social media posts may also spill into the workplace. Employers should first look for any breach of their social me- dia policy. Employees should know that anything they post on the internet has the potential to be viewed world-wide. If the posting or communication creates poten- tial harm to the employer's reputation or a poisonous work environment, the conduct could warrant disciplinary action. Employees cannot be disciplined for off- duty conduct unless it causes harm to the employer or is incompatible with proper discharge of the employee's duties. Similar to harassment at work, employers should conduct workplace investigations to sup- port any decision on off-duty conduct. Brian Johnston, Q.C., is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@ stewartmckelvey.com. Answer: In general, a notice to retire is valid and can be enforced if: • e employee has clearly expressed an intention to retire • e employer accepts. In Kieran v. Ingram Micro Inc., the On- tario Court of Appeal summarized how courts evaluate an intent to resign (which is analogous to a retirement): "(Whether) words or action equate to resignation must be determined contextu- ally. e surrounding circumstances are relevant to determine whether a reason- able person, viewing the matter objectively, would have understood (the employee) to have unequivocally resigned." e legal test for a finding of resignation involves both an objective element (notice to the employer) and a subjective element (a clear and unequivocal desire to quit while fully cognizant of the consequences). e expression must be more than merely mus- ing. Statements that the employee wants to retire "one day" or emotional outbursts are not enough to show a clear intent to retire. A clear intent is demonstrated by words, action and conduct that put that intention into effect. What is needed is an objective act by the employee showing his intention to carry his resolution to retire into effect. If an employee provides notice to retire, the notice is not itself a "contract" until it is accepted by the employer. In a British Columbia Court of Appeal case, Tolman v. Gearmatic Co., the court suggested that an employee may change his mind about a future departure from employment until the point the employer has relied on the employee's intent to leave, to the employ- er's detriment. e case ultimately turned on the finding that the employee had not resigned and had merely expressed a vague intention to resign in the future. If an employee retracts prior to it being accepted by the employer, the employer must show detrimental reliance in order to enforce it. e notice is a representation that, if acted upon, may be to the employ- er's detriment. Mere notice will not hold an employee liable to retire, but it can for dam- ages caused by the false representation. Recently, the Nova Scotia Court of Ap- peal in Kerr v. 2463103 Nova Scotia Ltd., found that Tolman had no application where a valid offer of resignation was made and accepted. In other words, employees may retract an offer to resign prior to the employer accepting the offer, but once the offer is accepted, employers do not have to accept the retraction. When an employer receives a notice to re- tire, it should have a follow-up meeting with the employee to ensure the employee's in- tention. Once the meeting is concluded and the employer formally accepts the notice, the employment relationship will come to an end at the specified retirement date. For more information see: • Kieran v. Ingram Micro Inc. 2004 CarswellOnt 3117 (Ont. C.A.). • Tolman v. Gearmatic Co., 1986 CarswellBC 737 (B.C. C.A.). • Kerr v. 2463103 Nova Scotia Ltd., 2015 CarswellNS 71 (N.S. C.A.). Harassment between employees outside of the workplace Question: Should an employer treat harassment between employees that occurred away from work and outside of work hours similarly to harassment in the workplace? It is implied that the employee will not do anything prejudiced to the employer's interests or reputation. When an employer receives a notice to retire, it should have a follow-up meeting to ensure the employee's intention.

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