Canadian Employment Law Today

September 11, 2019

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 ©2019 HAB Press, a subsidiary of Key Media 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, mechani- cal, photocopying, 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 Emplo y ment Law Today Canadian Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE HAB PRESS, A SUBSIDIARY OF KEY MEDIA 20 Duncan St. 3rd Floor, Toronto, ON M5H 3G8 President: Tim Duce Editor: Jeffrey R. Smith Email: Copy Editor: Patricia Cancilla Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Marketing Co-ordinator: Keith Fulford Email: Phone: (416) 649-9585 HAB Press Ltd. Worker unhappy with discipline, management quits but then changes mind THIS INSTALMENT of You Make the Call features a worker who quit shortly before her employer had a chance to fire her and then wanted to rescind her resignation. Delores Rain was an employee for the Paul First Nation (PFN), a First Nations band gov- ernment based in Wabamun, Alta. She worked in multiple positions in the PFN finance de- partment, including senior accountant. PFN management had some issues with Rain's tendency to submit reports to pro- gram managers late. e band also received complaints from other employees in the fi- nance department that Rain bullied, intimi- dated and humiliated them, including telling a co-worker to "shut up." When managers approached her about these issues, Rain was defensive and confrontational. On April 4, 2016 PFN gave Rain a letter stating its concerns about the report sub - missions and her conduct toward staff and management and referring to PFN's general code of conduct — which stipulated that "ev- ery employee has an obligation to conduct themselves [appropriately] in the workplace" and described the type of conduct that was expected. e letter also said that any further disruption of the work environment could re- sult in disciplinary action. According to Rain, she wasn't rude to other employees, but rather she was concerned with how things were being done and asked ques - tions — which some people thought meant she was being confrontational. She also said she had a lot of work to do and when people asked for things such as transaction listing and daily bank balances, it took time for her to reply and get them. She also claimed that an - other staff member made false entries so the band's accounts were out of balance, so she had to spend a lot of time reconciling them. However, Rain continued to push the enve - lope at work, circumventing the normal chain of command by taking her concerns directly to the PFN chief and council and bypassing her supervisor, executive director, and human resources. is led to a second letter on Nov. 30, 2017 warning Rain that "it is no longer ac - ceptable to have chief and council involved in administrative concerns." e letter stated that it served as a "level 2 warning" in the PFN dis- ciplinary regime and further similar conduct would result in further disciplinary action. On May 1, 2018 PFN suspended Rain for three days for continued misconduct that in- cluded: telling the HR manager to re-code transactions related to new accounts she had created herself; failing to post health payroll rec- onciliation entries; delaying bank deposit slips; failing to respond to emails in a timely manner; and being nowhere to be found on a few occa- sions when information was needed from her. By late June, PFN was at the point where it felt it was time to terminate Rain's employment. However, before it could move forward, Rain submitted her typed-up letter of resignation to the PFN chief and council, leaving her keys in her desk. Her letter of resignation asked for her to be paid for the three days she was suspended "to offer me a small token of appreciation for my efforts to set me on my way." Two days later, PFN confirmed its acceptance of the resigna - tion. However, on July 16, Rain emailed HR and others at PFN to say she wanted to rescind her resignation, but PFN didn't accept. Rain filed a complaint alleging she was un - justly dismissed through bullying and pres- sure to quit her job. Emplo y ment Law Today Canadian YOU MAKE THE CALL Was Rain unjustly dismissed? OR Did she resign from her employment? IF YOU SAID Rain resigned from her em- ployment, you're correct. e adjudicator noted that PFN followed a progressive disci- plinary approach in dealing with its concerns with Rain, starting with warnings and then a suspension in an attempt to change behav- iour with which PFN wasn't pleased. It also appeared that Rain had a strained relation- ship with her supervisor and others, but this wasn't necessarily harassment or bullying — Rain never alleged such behaviour until her unjust dismissal complaint. e adjudicator found that what Rain al - leged was bullying was instead management's reasonable requests to complete tasks. When this wasn't done, she was disciplined and given the opportunity to change. ere was no indi - cation that Rain was coerced into resigning in the wording and tone of Rain's letter of resig- nation or in the fact she left her keys when she left and didn't return, said the adjudicator. "e contents of this letter of resignation do not indicate that Ms. Rain was forced to quit," said the adjudicator. "erefore, the evidence leads me to conclude that Ms. Rain intended to quit and carried out that inten - tion by taking the time to compose and type a one-and-a-half-page letter of resignation." e adjudicator also found that PFN was entitled to accept Rain's resignation — which it did — and had no obligation to agree to re - scind it, especially since she tried to rescind it nearly three weeks later. Rain's complaint was dismissed. For more information see: • Rain and Paul First Nation, Re (June 24, 2019), Doc YM2707-11546, R. Gunn – Adj. (Can. Lab. Code Adj.).

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