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Time off for a while – or forever?

Resignation isn’t always what it seems

By Jeffrey R. Smith

Employment relationships end all the time, whether the employer fires the employee or the employee quits.

The circumstances can be different in each case, and the question of whether any notice or money is owed depends on how it all went down. But occasionally there is a dispute over what actually happened to terminate the relationship — and who actually did the terminating.

Often, a dispute like this can arise out of a misunderstanding of the intentions of one side by the other, or someone saying something in the heat of the moment which she didn’t really mean.

Arising out of such disputes in employment law is a test that courts and arbitrator often use, which examines the subjective intent and subsequent actions of the employee and whether it’s clear she meant to end things with the employer.

A couple of years ago, such a dispute arose between an Ontario meat packing plant and one of its employees in Quality Meat Packers Ltd. and UFCW-Can, Local 175 (Nunes).

Things were further muddled by the fact the employee in question didn’t speak English. Since her hiring, all her employment related communication was handled by a particular HR person who spoke the same language as the employee and translated all the necessary forms. Kind of a precarious situation, and one can almost see trouble coming down the road.

Sure enough, after 12 years of employment, the employee came to the HR person to say she couldn’t work anymore because her feet were swollen and in pain. The employee meant she needed time off for her feet to get better, but something was lost in the translation and the HR person thought she was resigning.

The employee, who didn’t know she might be entitled to accommodation or benefits, signed a resignation form, turned over her keys and cleaned out her locker. All along, the employee thought she was taking time off, but she was in fact terminating the employment relationship.

When the employee received her record of employment (ROE) that stated she quit, she didn’t read it because it was in English. Two weeks later, her husband read it and realized what had happened. They then attempted to clear things up with the employer.

An arbitrator ordered the employee reinstated, finding it would have been an “exceptional conclusion” to think the employee was quitting rather than wanting time off, despite the language barrier. Though she went along with the resignation procedure, the employer didn’t make all her options clear to hear, which was especially important due to the employee’s vulnerability and risk of misunderstanding.

The decision is consistent with many such cases where an employer was a little too quick to accept what it thought was a resignation without a closer examination of the situation.

Usually it’s a good idea to confirm in writing with the employee that she wants to resign, and also to allow a “cooling off period” to give the employee time to think before making it official.

A common theme with this and other similar cases for employers is this: Make sure an employee is really quitting with a full understanding of her options before pushing her out the door.

For more information see:

Quality Meat Packers Ltd. and UFCW-Can, Local 175 (Nunes), Re, 2013 CarswellOnt 3605 (Ont. Arb. Bd.)

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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