Canadian HR Reporter

CANADIAN HR REPORTER SEPTEMBER 2019 EMPLOYMENT LAW 5 When does a resignation really mean goodbye? ree recent decisions suggest employment relationship doesn't always come to an end Employers often assume receiving a notice of resignation creates a clean break in the em- ployment relationship. However, as three recent decisions from the Court of Appeal for Ontario suggest, the fact an employee has "resigned" doesn't always mean the employment relationship has come to an end, nor that the employer is absolved from any further liability. English v Manulife Corpora- tion: Resignation must be "clear and unequivocal" In this 2019 decision, the Court of Appeal admonished the employer for enforcing what the court saw as a tentative resignation, and then resiling from a promise to allow the employee to "change her mind." Manulife Financial sought to upgrade its customer service department by bringing in a new computer system. Elizabeth English, a 66-year-old, 10-year employee, did not want to learn the new system and in Septem- ber 2016, provided written notice of resignation, effective Dec. 31, 2016. At the time, English told her supervisor she was not cer- tain she wanted to retire, and was assured she could change her mind if she wished. In October 2016, Manulife suspended its conversion to the new computer system. On hear- ing this, English advised her su- pervisor she no longer wanted to retire. Manulife did not accept English's change of heart, but no one at Manulife expressly ad- vised English of this. In Decem- ber, English was asked to stop coming to work in accordance with her resignation. She sued alleging wrongful dismissal and claimed damages equivalent to 16 months' compensation. In Canada, there is a line of de- cisions in which an employee is given an option to rescind a notice of resignation if the employer has not taken a step in reliance on it (for example, hired or appointed a replacement). Relying on this line of decisions, English argued she could retract her resignation at any time because Manulife had not taken a step after receiving it. Manulife argued it was entitled to accept the resignation with- out the need to take any further action. It relied on more recent decisions from Nova Scotia and Ontario in which the courts held the mere acceptance of a notice of resignation is sufficient to make the resignation effective. e motion judge agreed with Manulife. However, on appeal, the Court of Appeal for Ontario reversed the ruling of the motion judge, on the factual basis the resignation was not "clear and unequivocal." To the contrary, the court held, Manulife knew English might change her mind and was bound to its promise she could do so. As such, the termination of her em- ployment was a wrongful dismiss- al. e Court of Appeal expressly declined to address the broader NOTICE> pg.6 JOINT VENTURE BY: Sundeep Gokhale and omas Gorsky Legal View Credit: Topp_Yimgrimm (iStock) 37 % U.S. and Canadian employees looking either actively or casually for new job opportunities. 36 % Workers who would consider a new position if they were approached. 2. 4 years Length of time unhappy workers would stay with their current employer before leaving. Source: 2018 Pulse of Talent report by Ceridian 5 TOP 43% Wanting more money. 17% Feeling bored or unchallenged by work. 11% Not feeling appreciated. 10% Looking for a higher purpose or stronger mission. 9% Seeking a better corporate culture. reasons for leaving a job: Manulife argued it was entitled to accept the resignation without the need to take any further action. Notable cases Scott and Trans Armored Canada Inc., Re (Jan. 23, 2019), Doc. YM2707-11347 (Can. Lab. Code Adj.). A guard for Trans Armored Canada (TAC) worked every third Saturday at a farmer's market loading ATMs in Fredericton, N.B. and had Thursdays off each week. TAC implemented a new procedure that required him to stay onsite at the market during operating hours and didn't guarantee specific days off — both changes from previous practice. The guard objected as he felt he wouldn't be paid for the full shift every third week and he wanted his Thursdays off. The guard told TAC "I'll have my keys and uniform to you ASAP" and requested his Record of Employment. TAC said it accepted his resignation and would provide four weeks' severance pay, so the worker dropped his keys and uniforms in the company mailbox. One month later, the worker said he hadn't quit, but simply didn't agree with the new procedure. He claimed he was pressured into agreeing with the new duties or would face dismissal. The adjudicator found that TAC was within its rights to determine days off for employees if it complied with employment standards, and the changes didn't amount to constructive dismissal as the guard's actions indicated "his clear intention to resign his position with TAC." Devost v. IBM Canada Ltd., 2018 CanLii 112284 (Ont. Lab. Rel. Bd.). A worker was hired by IBM Canada in Ontario in 2004. In 2012, he moved to Quebec and began working remotely. In August 2016, IBM asked the worker to relocate to Ottawa but the worker wasn't willing to relocate, so IBM said his employment would be terminated effective March 15, 2017. The worker resigned immediately. The board found IBM provided notice of termination greater than the legislative minimum and there were no changes in the terms and conditions of the worker's employment during the working notice period — the worker was allowed to work from home under the same conditions. The board found that the circumstances involved "an actual termination of employment" rather than constructive dismissal. The Ontario Employment Standards Act, 2000 allows for an employee to resign after being given notice of termination and still receive termination pay, but the employee must give two weeks' notice of resignation during the statutory notice period. The worker resigned the day he provided notice and therefore wasn't entitled to severance pay under the act. sherrardkuzz.com | 416.603.0700 | 24 Hour 416.420.0738 250 Yonge St #3300, Toronto, ON M5B 2L7 | @sherrardkuzz At Sherrard Kuzz LLP we collaborate with our clients to anticipate and avoid human resources problems. We know proactive steps today will prevent painful headaches tomorrow. From human rights to health and safety, and everything in between… If you're an employer, we're the only call you need to make. 24 HOUR 416.420.0738

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