Canadian HR Reporter

CANADIAN HR REPORTER August 10, 2015 EMPLOYMENT LAW 5 Jeffrey Smith Legal View RECRUITING FINANCIAL PROFESSIONALS? O er positions to over 190,000 Members Highly targeted advertising Immediate matching resume database access FOR MORE INFORMATION, cpacanada.ca/CPASource TELEPHONE•416 204 3284•EMAIL•TGardiner@cpacanada.ca 14-126a_EN_CPAsource_fullpagead_9.625x7.indd 1 10/8/2014 3:40:37 PM Employee resigns with plans to start over University worker can't resign from job without also resigning from school: Arbitrator A worker who resigned but then accepted another position with the same employer just two weeks later is not entitled to cred- it for her previous service, an arbitrator in British Columbia has ruled. Derra Truscott attended Simon Fraser University (SFU) in Van- couver. After she graduated, she started working in the univer- sity's temporary pool in 2008. Two years later, she was hired in a full-time position as a program assistant in the university's life- long learning department at the downtown campus. In September 2012, Truscott began her studies in a master's degree program at SFU's subur- ban campus in Burnaby, B.C. She applied for several other jobs at SFU as well. On Jan. 15, 2013, Truscott emailed the co-ordinator of the temporary pool at SFU asking about returning to the pool on a part-time basis. Her studies were time-consuming and she was find- ing it difficult to work full-time and commute to the Burnaby campus while working downtown. She inquired as to how many hours a week she might get and any other information available. e co-ordinator said it was dif- ficult to answer those questions because assignments for the tem- porary pool were all different. On Feb. 20, Truscott wrote to the program director in her de- partment and SFU's HR liaison, providing a "formal resignation" effective May 7. Her last working day was set for March 28. She ex- plained she planned to pursue her studies full-time. The HR liaison confirmed Truscott's vacation balance and the collective agreement's terms regarding outstanding vacation upon resignation. e agreement also allowed an employee to re- tract a notice of resignation within three working days. She mentioned Truscott could extend her last day to April 12 so Truscott could take all her scheduled vacation days. Trus- cott agreed and the HR liaison indicated she would prepare Trus- cott's separation notice for April 12 if Truscott amended her letter of resignation. e same day, Truscott emailed the co-ordinator of SFU's tempo- rary pool and said she would be available starting in May. The co-ordinator said Truscott would have to re-apply, meet with her and undergo a reference check. Truscott sent a revised notice of resignation on Feb. 22 indicating April 12 would be her last working day — but still saying she planned to pursue her studies full-time. e program director signed an employment separation notice with "resignation" ticked off as the reason for leaving. New position offered On Feb. 26, Truscott received an email from a manager regarding another SFU job for which she had applied in September 2012 — that of program assistant for SFU's teaching and learning centre. e position wasn't yet filled and Truscott indicated she was still interested and would be avail- able for an interview, which was held on March 8. Truscott was aware she could still retract her resignation but had "no intention to stay in the position the retrac- tion covered." Truscott had a second inter- view and was offered the position on April 12, with a proposed start date of April 29. Truscott accepted the job offer two days later. On April 30, one day after she started in the new position, she was told by SFU's HR department that her salary level and vacation accrual were being "re-set back to zero." SFU considered Truscott a re-hire since she had resigned from her last job, so her pay was set at the entry level and her ser- vice date was April 29, 2013. Truscott disagreed, citing a provision in the collective agree- ment that allowed seniority to be restored if an employee resigned but was rehired within 90 days. The union filed a grievance, claiming Truscott's service time and compensation should reflect the previous full-time position she started in January 2013. e union argued Truscott did not intend to resign completely from SFU, only the program as- sistant position. is was borne out by her inquiries into other po- sitions at the university that would fit better with her studies at the Burnaby campus, said the union. 2-step test to determine intent For a resignation to be considered legitimate, it must pass a two-step test that has been established in many previous cases, said arbitra- tor Joan Gordon. e test involves a subjective intention by the em- ployee to leave employment and objective conduct that indicates "a continuing effort to carry that intention into effect." ough the collective agree- ment had several provisions related to resignation — includ- ing the three-day period within which employees could retract a resignation — these didn't change the relevance of the two- step test determining voluntary resignation. However, the three-day limit for retraction was an attempt by the parties to limit the analysis of the employee's objective conduct following a resignation to just that period, said Gordon. She found the contention by Truscott and the union that she only intended to resign from her position and not her employment was a distinction that was irrelevant for the purposes of case law. Gordon also found there was no evidence Truscott was led to believe she could resign from her program assistant position but maintain her employment sta- tus at SFU. e temporary pool co-ordinator didn't give her any guarantee of employment when she inquired and nobody else said she would continue to be an employee. Both Truscott's letters of resig- nation "clearly and unequivocally express her intention to 'formally' resign from the position she held INCONSISTENT > pg. 6

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