Canadian Employment Law Today

March 15, 2017

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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Employer mistakes employee's storming out as resignation Passive acceptance of long-time employee's perceived resignation not enough; employee didn't intend to quit BY JEFFREY R. SMITH AN EMPLOYEE who collects her things and walks out of the office may seem to be quitting her job, but if it's out of character, following a disagreement, and the employee is a long-term one, it may not be that simple. Rajinder Johal, 63, was a senior family law clerk for Brampton, Ont.-based law firm Simmons da Silva LLP, hired in 1988. In 2008, she became the primary law clerk for one of the four lawyers in the firm's family law group. ree years later, she became the lawyer's only law clerk. Johal had a clean employment record during her entire 27 years with the firm. In the fall of 2014, one of the firm's four family law lawyers resigned, followed by a second lawyer in summer 2015. On June 3, the lawyer who was her boss and the firm's HR manager met with Johal to inform her of changes to the family law group, which included the return of a senior law clerk who had been on parental leave. Johal was told she would continue in the same role she had been doing for many years while the returning senior law clerk would be assisting him with file co-ordination — a role similar to what she had before going on leave. She was then told to think about the matter and they would speak again the next day. However, according to the lawyer, Johal said she wouldn't work with the returning law clerk or go along with the plan, for various reasons. She then left work a few minutes early. e next day, Johal returned to work. ough she appeared calm, she removed all her personal belongings from the office and brought her security pass to her boss, saying he had placed her in an "intolerable position." Her boss asked her if she was resigning and she said she had "hit the end of the road." After leaving, she returned later that day an returned her security fob to the receptionist. e firm didn't hear from Johal over the next few days, though another law clerk had recently walked out of the firm for several days and had been allowed to return to work. After five days, the firm considered Johal to have resigned and mailed her a letter accepting the resignation. It also notified a junior law clerk who was on probation that her employment was secure and began informing clients and staff of Johal's departure. According to Johal, the lawyer told her the returning law clerk would be a project manager and would be assigning tasks to Johal, essentially meaning she no longer would report to the lawyer. She said she only handed her security pass and collected her belongings the next day after hearing the lawyer tell another law clerk that she would be working closely with him — which upset her because she had been the lawyer's only law clerk since 2011. In addition, that morning she was still upset but her boss went straight to his office when he arrived at work and didn't acknowledge her. e court noted that the lawyer was aware Johal didn't get along with the returning law clerk and having to work with her would make Johal upset, Johal had a long term of service with the firm, she was 62 years old at the time she left, she didn't tell anyone she was quitting, and her behaviour wasn't typical of her. Johal sued for wrongful dismissal and brought a motion for summary judgment, claiming she didn't intend to resign and the firm should have verified her intentions. e firm argued it gave her a few days to change her mind, but once it accepted it and began taking measures to move on, it was too late. Once staff and clients were notified, rehiring Johal would have encouraged others to resign without notice and cause confusion, the firm argued. e Ontario Superior Court of Justice pointed out that it has been established that "a valid and enforceable resignation must be clear and unequivocal," meaning it must "objectively reflect an intention to resign" through the employee's words and actions. e court also noted that the firm was "top-heavy with law clerks," especially with a law clerk returning from parental leave and two lawyers resigning. As a result, it would be to the firm's financial advantage if Johal resigned. ese circumstances led the court to find that when Johal walked out, the firm looked at it as an opportunity and simply accepted what it perceived as a resignation without investigating further, said the court. Given numerous factors such as Johal's age, length of service, status as the only law clerk of a particular lawyer, her salary, and the fact she lived nearby, made it difficult for the court to believe Johal resigned. In addition, she wasn't given any notice of the oral-only meeting, her boss knew she didn't get along with the returning law clerk, Johal had never threatened to resign before, and didn't provide any notice or statement that she was quitting. A reasonable person would not have viewed Johal's actions as a voluntary resignation, the court said. e court determined that Johal "simply needed a few days to gather her thoughts and get some advice" — her boss even told her to think about it and they would talk about it the following day, which didn't happen. ough the firm wasn't obligated to second- guess Johal's motivations and intentions, it was required to do more than nothing for a few days to determine Johal's "true and unequivocal intention," said the court. In addition, the firm didn't provide any evidence to convince the court of its claim that bringing Johal back would be detrimental because it had already informed staff and some clients of Johal's departure. e court determined that Johal did not resign from her position and the firm acted too hastily. ough Johal requested damages of between 22 and 26 months' salary continuation, the court indicated it would only order a trial on the amount of damages if the parties couldn't work out an agreement themselves. For more information see: • Johal v. Simmons da Silva LLP, 2016 Car- swellOnt 19650 (Ont. S.C.J.). Canadian HR Reporter, a Thomson Reuters business 2017 Canadian Employment Law Today | 3 WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as handling risky terminations, drugs and alcohol in the workplace, employee off-duty conduct, and workplace investigations. To view the webinar catalogue, visit Cases and Trends

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