Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends 6 | August 19, 2015 Cases and Trends On Jan. 15, 2013, Truscott emailed the co- ordinator of the temporary pool at SFU ask- ing about possibly returning to the pool on a part-time basis, since her studies were taking up a lot of her time and she was finding it dif- ficult to work full-time in the program assis- tant position and commuting to the Burnaby campus while working in downtown Van- couver. She inquired as to how many hours a week she might get and any other informa- tion available. e co-ordinator responded by saying it was difficult to answer Truscott's questions because assignments for the tem- porary pool were all different. About one month later on Feb. 20, Trus- cott wrote to the program director in her department and SFU's human resources li- aison, providing her "formal resignation" ef- fective May 7, with her last working day on March 28. She explained she planned to pur- sue her studies full-time and couldn't work full-time while doing so. e HR liaison confirmed Truscott's vaca- tion balance and the collective agreement's terms regarding outstanding vacation upon resignation. e collective agreement also allowed an employee to retract a notice of resignation within three working days. She mentioned Truscott could extend her last day to April 12, which would allow Truscott to take all her currently scheduled vacation days. Truscott agreed and the HR liaison in- dicated she would prepare Truscott's separa- tion notice for April 12 if Truscott amended her letter of resignation. e same day, Truscott emailed the co- ordinator of SFU's temporary pool and said she would be available starting in May. e co-ordinator responded that Truscott would have to re-apply and meet with her, as well as undergo a formal reference check. Truscott sent a revised notice of resigna- tion 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. Job opportunity in another department 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 in- terested and would be available for an inter- view, which was held on March 8. Truscott was aware she could still retract her resig- nation but had "no intention to stay in the position the retraction covered." Truscott had a second interview and was offered the position on April 12, with a pro- posed start date of April 29. Truscott accept- ed the job offer two days later. On April 30, one day after she started in the new position, was told by SFU's HR de- partment that her salary level and vacation accrual were being "re-set back to zero." SFU considered Truscott a re-hire sine she had resigned from her last job, so her pay was set at the entry level and her service date was April 29, 2013. A collective agreement pro- vision allowed seniority to be restored if an employee resigned but was re-hired within 90 days, but not pay level. e union filed a grievance on Truscott's behalf claiming her service time and com- pensation should reflect her previous full- time position with the Lifelong Learning De- partment that she started in January 2013. e union argued Truscott did not intend to resign completely from SFU, only the pro- gram assistant position. is was borne out by her inquiries into other positions at the university that would fit better with her stud- ies at the Burnaby campus, said the union. Two-step test to determine intent to resign e arbitrator noted that for a resignation to be considered legitimate, it must pass a two- step test that has been established in many previous cases. e test involves a subjective intention by the employee to leave employ- ment and objective conduct that indicates "a continuing effort to carry that intention into effect." e collective agreement had sev- eral provisions related to resignation – in- cluding the three-day period within which employees could retract a resignation – but 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 the arbitrator. e arbitrator found that the contention by Truscott and the union that Truscott only intended to resign from her position and not her employment was a distinction that was irrelevant for the purposes of case law. e arbitrator also found there was no evi- dence that Truscott was led to believe that 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 her she would continue to be an employee. Both Truscott's original letter of resigna- tion and her revised one "clearly and un- equivocally express her intention to 'for- mally' resign from the only position she held and therefore from her employment at SFU," said the arbitrator. Truscott indicated she intended to pursue her studies and nowhere said anything about working elsewhere at SFU. She was also told by the HR liaison that a separation notice would be prepared for April 12 once her revised resignation notice was submitted. In addition, she had to re- apply for the program assistant position she ended up taking, complete with a full back- ground check. In addition, the collective agreement pro- vision allowing Truscott to maintain her seniority had no bearing on other aspects of her service, as the collective agreement specified the period in which a retraction could be made. Truscott was aware of that limit and failed to exercise it. Her later re- alization that her resignation negatively af- fected her contractual rights was not suffi- cient to warrant disregarding the collective agreement, said the arbitrator in dismissing the grievance. "(Truscott's) submission of a second, re- vised 'formal' notice of resignation on Feb. 22, together with her failure to retract that notice when the prospect of another posi- tion arose on Feb. 26, constitutes conduct carrying out her intention to resign from her employment at SFU, and conduct that was inconsistent with remaining in the employ of SFU," said the arbitrator. See Simon Fraser University and CUPE, Local 3338 (Trus- cott), Re, 2015 CarswellBC 1640 (B.C. Arb.). « from RESIGNATION on page 1 Employee's actions showed clear intent to resign ability, age and race. In the event an em- ployee connects the revocation of an em- ployment offer to a protected ground of discrimination and is able to prove such discrimination, the employer must show that the revocation was reasonable and jus- tifiable or a bona fide occupational require- ment. Otherwise, the employer may also be liable for monetary compensation for viola- tion of human rights legislation. For more information see: • underchild v. Nog-Da-Win-Da-Min Fam- ily & Community Services, 2000 Carswel- lOnt 545 (Ont. S.C.J.). • Horvath v. Joytec Ltd., 1989 CarswellSask 329 (Sask. Q.B.). Tim Mitchell practices management-side labour and employment law at Norton Rose Fulbright's Calgary office. He can be reached at (403) 267-8225 or tim.mitchell@norton- rosefulbright.com. « from ASK THE EXPERT on page 2 Inducement can lead to longer notice

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