Canadian Employment Law Today

September 16, 2015

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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Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2015 More Cases Worker gives three weeks' notice then quits immediately A WORKER QUIT HIS job immediately when he refused an assignment after giving three weeks' notice of resignation, an adju- dicator has ruled. Robert Allen was a truck driver for G.K. Morse Trucking, a trucking and excavating contracting company based in Centreville, N.S. Allen was hired in November 2011 and worked with the company for two years. On Dec. 18, 2013, Allen told the com- pany's dispatcher that he was leaving G.K. Morse effective Jan. 10, 2014. Allen had made plans to join another trucking com- pany and felt two weeks' notice was enough, though it was in fact more than three weeks until his resignation date. e reason for re- vealing his intended resignation more than two weeks before was due to a pending de- livery he was assigned that would take him to Connecticut over the holiday season. Al- len had made plans for New Year's Eve and if he made the trip to Connecticut there was a chance he wouldn't be home in time. A couple of days later, on Dec. 20, Allen provided a written resignation to reinforce the verbal resignation he had given. He heard nothing until Dec. 23, when the com- pany's owner, Ken Morse, called him. Morse told Allen that if Allen didn't make the delivery to Connecticut, he wouldn't get paid. He was angry because he felt Allen could make the delivery and be back in time for New Year's. According to Allen, Morse said that his employment was terminated and he should clean out his truck so another driver could make the trip to Connecticut the next day. Another driver made the delivery to Con- necticut and Allen received no more assign- ments before his resignation date of Jan. 10, 2014. When he failed to receive a paycheque for his final pay period up to that date, he filed a claim for unjust dismissal. G.K. Morse argued Allen's refusal on Dec. 18 to make the trip to Connecticut constituted a resigna- tion on that date, which was confirmed in his conversation with the owner, Ken Morse, on Dec. 23. e adjudicator noted that every em- ployee had the right to resign whenever he wanted, subject to reasonable notice of his intention to do so. ough Allen believed two weeks was appropriate, there was no employment contract that stipulated that was the case and in any rate he provided more notice than that for his intended res- ignation date. e adjudicator also said that if the em- ployer wishes the employee to continue to work through the notice period, the employ- ee is obligated to do so — the employer has the right to waive the notice period but there is no obligation to do it. "An employee who wishes to quit and wishes to resign his position as an employee must live up to the terms of his employment agreement and accordingly work for his em- ployer for the full term of the notice," said the adjudicator. "e departing employee who gives notice of resignation is required to re- main and continue with his duties to the end of the notice term." e adjudicator found the delivery trip to Connecticut was a normal event in G.K. Morse's business and Allen's assignment to do it was part of his job duties — if his pref- erence was not to do it then he should have resigned before the scheduled date of the trip. Allen's refusal to accept the assignment was "inconsistent with his obligations as an employee" and G.K. Morse was free to take it to mean he immediately quit his job, said the adjudicator. e adjudicator ruled that Allen resigned when he refused to take the Connecticut de- livery assignment and there was no unjust dismissal. Allen's claim was dismissed. See Allen and G.K. Morse Trucking Ltd., Re, 2015 CarswellNat 2619 (Can. Labour Code Adj.). since it was against policy to leave such a resident alone. About 15 minutes before the end of her shift, Kupi thought it was odd she hadn't heard anything yet. She had plans for the evening and didn't want to stay, so she asked a co-worker who was working in the other section of the facility to come by and cover for her until his shift was over, which was 4:30 p.m. She also told him the supervisor wouldn't make him stay. e call-in list for Kupi's part of the facility was separate from that of the co-worker's facility. e co-worker told Kupi he couldn't stay late because he had to get his kids, but when he came out of the bathroom shortly after 4 p.m., Kupi had left and was driving away. When no call from the on-call supervisor came he became agitated and called the su- pervisor. He had no choice but to stay until someone else came in, which ended up be- ing 6 p.m. e organization was "very surprised and appalled and dumbfounded" when it learned Kupi had left the resident before someone relieved her. ough she asked a co-worker to cover for her, Kupi knew the co-worker couldn't stay long, It was decided Kupi's misconduct was serious enough to warrant dismissal. Kupi's employment was terminated effective Feb. 10, 2014. e arbitrator found the co-worker had only agreed to stay until the end of his shift and not to cover looking after the resident until someone else arrived. e co-worker's shift did not overlap with Kupi's because the co-worker was assigned to a different part of the facility with his own responsibilities, said the arbitrator. e arbitrator also found the supervisor should have advised Kupi that she was go- ing to have to stay as no replacement had yet been found, but Kupi shouldn't have left the facility without confirming the situation. e employment agreement made it clear that employees would have to stay late if the need arose. e arbitrator agreed that Kupi should have been disciplined, but found dismissal was too extreme. ough Kupi didn't have a long service record, it was clear of significant discipline and she had good performance appraisals. She had also demonstrated com- mitment to the residents and didn't leave the resident in question completely alone, even though it was with someone she shouldn't have asked to take responsibility, said the arbitrator. Community Living Huntsville was or- dered to reinstate Kupi to her employment with a 15-day suspension on her record. However, since Kupi didn't acknowledge she did anything wrong, the arbitrator declined to award any financial compensation to Kupi for lost employment. See Community Living Huntsville and OPSEU, Local 380 (Kupi), Re, 2015 CarswellOnt 10550 (Ont. Arb.). Resident wasn't completely alone « from CARE on page 1 "The departing employee who gives notice of resignation is required to remain and continue with his duties to the end of the notice term."

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