Canadian Employment Law Today

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GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations @thomsonreuters.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: Karen Lorimer Publisher: John Hobel Managing Editor: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2015 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 Employee quits his resignation THIS INSTALMENT of You Make the Call features an employee who resigned rather than return to his old job after a temporary assignment. Curtis Robertson worked for the Department of National Defence (DND) as a senior mail operations clerk in Ottawa, hired in September 2000. In 2011, Robertson was off ered two acting appointments related to a project modernizing local mail delivery within the DND. e fi rst position ran from Feb. 28 to June 24, 2011, and the second position went from June 27 to Oct. 26, 2011. He worked in these positions in Gatineau, Que., across the Ottawa River from Ottawa. Shortly before the second acting appointment ended, he was told he would have to return to his regular position in Ottawa at the end of it. Robertson wasn't happy because he didn't think his work was done in Gatineau. He felt he should be given another acting appointment and met with his deputy director to inform her he had no intention of returning to his old position. He tried to give the deputy director a resignation he had drafted during the meeting, but the deputy director told him to give it more thought. Two weeks later, Robertson was reminded he was to report to his old position after the expiry of his acting appointment. He emailed the deputy director to once again say he didn't want to return and he would submit his resignation letter. e deputy director again told him to think it over and his main position was mail operations clerk. e next day Robertson sent another email to the deputy director saying there was "nothing more to think about," he had written his resignation letter and his last day of work would be Oct. 28. He also said the DND was "unceremoniously shoving (him) out of the way" by refusing him another acting appointment. On Oct. 25, the deputy director told Robertson the DND needed him to return to his old position, but Robertson said he would rather resign. He asked when would be a good time to deliver his resignation letter but the deputy director didn't respond, though she gave him until Oct. 31 to return. Robertson failed to report to work on Oct. 31. e following day, he emailed his resignation letter to his boss for his substantive position as mail operations clerk, indicating he was resigning eff ective Dec. 2. e next day he emailed the deputy director saying he would not be reporting to his old position and he had resigned. Despite his indicated resignation date of Dec. 2, Robertson continued to refuse to report to work. On Nov. 7, his manager emailed him with three options — report to work, take sick leave supported by a medical certifi cate, or resign sooner than Dec. 2. e same day, the deputy director fi lled out the DND notice of resignation form, which offi cially accepted the resignation. Robertson responded by saying some furniture and equipment would have to be moved if he were to return to work, but didn't address any of the options given. He decided to stay home out of frustration. On Nov. 10, Robertson advised the DND he had fallen ill and would not be coming in to work. Ten days later, he indicated he had a recurring medical condition. On Nov. 22, he received a termination/retirement information form to fi ll out and return to the compensation department. On Nov. 24, Robertson called and said he wouldn't be able to return to work until Nov. 28, but his manager said not to bother since his resignation would be in eff ect a few days later. Robertson contacted the compensation department and asked for his resignation to be rescinded. He was told his resignation had been accepted and was considered irrevocable. Robertson fi led a grievance demanding the DND to accept his request to rescind his resignation. YOU MAKE THE CALL Should the resignation have been rescinded? OR Was the resignation valid once the DND accepted it? IF YOU SAID the resignation was valid, you're right. e adjudicator found Robertson clearly intended to resign his position once it was decided his temporary acting appointments were over. He stated he was going to submit his resignation and did so on Nov. 1, indicating his last day of work would be Dec. 2. e resignation letter also outlined Robertson's stated reasons for resigning — including that he didn't want to return to his old position. e adjudicator also found there was nothing indicating Robertson's decision was aff ected by any condition. ough he was off work for medical issues, Robertson never in- dicated these aff ected him mentally, particu- larly since he had plenty of time to rescind his resignation before the DND accepted it. Robertson made an argument that the DND's refusal to rescind the resignation was disciplinary in nature, but the adjudicator disagreed since there was ample opportunity to change his mind — the termination/retire- ment form was sent to Robertson three weeks after he submitted his resignation letter. "(Robertson) was not coerced or pro- voked, nor did he lack the capacity to make an informed decision," said the adjudicator. "He repeatedly and continuously referred to his resignation, he used an inappropriate tone while corresponding with his superiors, he was insubordinate by refusing to report to his substantive position, and he failed to report to work altogether without prior notice… What we have here is a clear and unequivocal resignation." See Robertson v. Deputy Head (Department of National De- fence), 2014 CarswellNat 2395 (Can. Public Service Lab. Rel. Bd.).

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