Canadian Employment Law Today

with Colin G. M. Gibson Ask an Expert HARRIS AND COMPANY VANCOUVER 2 | October 9, 2019 Canadian HR Reporter, 2019 Have a question for our experts? Email jeffrey.smith@keymedia.com Answer: To be legally binding, an employ- ee's resignation must be voluntary and sat- isfy two tests. First, the employee must take objective steps that are consistent with res- ignation, such as submitting a resignation letter or stating she is quitting. Second, the employee must have the subjective intention to resign. It can sometimes be difficult for an em- ployer to know whether an employee ac- tually intended to resign, especially if the employee left the workplace suddenly in an emotional state or made comments that were ambiguous about her intentions. Factors that may be relevant in determining whether or not a resignation was voluntary include: the employee's length of service; the employee's financial circumstances; what the employee said or did when she they the work- place; the circumstances leading to the em- ployee's departure; the employee's emotional state when they left; whether the employee's conduct was consistent with resignation (for example, clearing out their office, saying goodbye to co-workers, asking for a reference letter or submitting a resignation letter); and whether the employee asked to withdraw the resignation shortly after submitting it. In Johal v. Simmons da Silva LLP, a long- service employee was told that a staff mem- ber with whom the employer knew she did not get along would be assigning her work. e next day, the employee packed up her personal effects, returned her building pass and left the building. ere was some dis- crepancy about what was said at the time of the employee's departure. ree days later, Resignation notice: Making it stick Question: If an employee says she is quitting, what does an employer need to do to make sure the resignation is binding so the organization can move forward? Micromanagement: Can it be bullying and harassment? Question: Can a manager's micromanaging of an employee's entire workday and list of tasks be considered bullying and harassment if it makes the employee feel pressured? Answer: Employers have a duty to en- sure the health and safety of their work- ers. This includes an obligation to keep employees safe from bullying and harass- ment in the workplace. In most Canadian jurisdictions, work- place bullying and harassment is addressed in workers' compensation legislation, occu- pational health and safety regulations and/ or policy. In British Columbia, for example, WorkSafe BC Policy D3-115-2 requires em- ployers to take all reasonable steps to pre- vent workplace bullying and harassment. To prevent and deal with workplace bul- lying and harassment, employers should implement measures such as: Developing a policy statement with re- spect to workplace bullying and harassment not being acceptable or tolerated Taking steps to prevent where possible, or otherwise minimize, workplace bullying and harassment Developing and implementing procedures for workers to report incidents or complaints of workplace bullying and harassment, and for how the employer will investigate and deal with such incidents and complaints Training supervisors and workers on bul- lying and harassment and the employer's policy and procedures. WorkSafe BC defines bullying and harass- ment as including any inappropriate con- duct or comment by a person toward a work- er that the person knew or reasonably ought to have known would cause that worker to be humiliated or intimidated. However, the def- inition specifically excludes any reasonable action taken by an employer or supervisor relating to the management and direction of workers or the place of employment. Managers and supervisors are not held to a standard of perfection and are entitled to a considerable amount of leeway when they are exercising their authority to manage and direct workers and the employer's operation. However, this authority must be exercised reasonably and in good faith, for legitimate work-related purposes and in a manner that is not abusive, demeaning or hostile. Where an employee alleges that micro- management by her manager constituted bullying and harassment, the question is whether the manager's conduct represented a reasonable and good-faith exercise of man- agement authority or crossed the line into bullying, harassing or abusive behaviour. Two decisions illustrate how this is- sue is typically addressed. In Decision No. 317/171, the Ontario Workplace Safety and Insurance Appeals Tribunal considered a situation where an employee complained that his supervisor was bullying and harass- ing him. e employee's claims included al- legations that his supervisor had required the employee to move his desk just outside the supervisor's office so the supervisor could overhear his conversations, had hu- miliated him in front of others, had never said hello to him in the morning and had criticized his work unreasonably. e em- ployee said this conduct made him feel ner- vous and anxious, and that he feared com- ing to work because he didn't know what his supervisor would do next. After reviewing the evidence, the tribu- nal found that while the supervisor had a management style that was tough and may even have amounted to micromanagement, the supervisor's conduct never crossed the line into bullying and harassment as it rep- resented reasonable exercise of manage- ment authority. Conversely, in Toronto Transit Commis- sion v. Amalgamated Transit Union (Stina Grievance), Arbitrator Shime found that the employee had been the victim of workplace abuse and harassment by his supervisor. e supervisor had constantly and unfairly singled the employee out for not working, while ignoring the conduct of coworkers who behaved in the same way. e employee was only allowed to use his phone during lunch and coffee breaks, while others could use their phones whenever they wanted. As the supervisor paid special attention to this employee, other workers began to keep a distance from him for fear of being targeted, too. e complainant always received bad performance reviews from this supervisor but never from the other supervisors with whom he worked in the same workplace. e employee was not allowed to leave early on the day before his vacation while all other workers were permitted to do so. e em- ployee was followed into the washroom by his supervisor and watched while he washed his hands on numerous occasions. All of these actions by the supervisor were con- ducted continuously over a number of years. e arbitrator concluded that the super- visor had abused his authority and awarded the worker $25,000 in general damages. For more information see: • Decision No. 317/171, [2017] OWSIATD No. 1243 (Ont. Workplace Safety and Ap- peals Trib.). • Toronto Transit Commission v. Amalgam- ated Transit Union (Stina Grievance), [2004] O.L.A.A. No. 565 (Ont. Arb.). 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