Employee resigns with plans to start over (Legal View)

University worker can’t resign from job without also resigning from school: Arbitrator
By Jeffrey Smith
|Canadian HR Reporter|Last Updated: 08/07/2015

A worker who resigned but then accepted another position with the same employer just two weeks later is not entitled to credit for her previous service, an arbitrator in British Columbia has ruled.


Derra Truscott attended Simon Fraser University (SFU) in Vancouver. After she graduated, she started working in the university’s temporary pool in 2008. Two years later, she was hired in a full-time position as a program assistant in the university’s lifelong learning department at the downtown campus.


In September 2012, Truscott began her studies in a master’s degree program at SFU’s suburban campus in Burnaby, B.C. She applied for several other jobs at SFU as well.


On Jan. 15, 2013, Truscott emailed the co-ordinator of the temporary pool at SFU asking about returning to the pool on a part-time basis. Her studies were time-consuming and she was finding it difficult to work full-time and commute to the Burnaby campus while working downtown. 


She inquired as to how many hours a week she might get and any other information available. The co-ordinator said it was difficult to answer those questions because assignments for the temporary pool were all different.


On Feb. 20, Truscott wrote to the program director in her department and SFU’s HR liaison, providing a “formal resignation” effective May 7. Her last working day was set for March 28. She explained she planned to pursue her studies full-time.


The HR liaison confirmed Truscott’s vacation balance and the collective agreement’s terms regarding outstanding vacation upon resignation. The 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 so Truscott could take all her scheduled vacation days. Truscott agreed and the HR liaison indicated she would prepare Truscott’s separation notice for April 12 if Truscott amended her letter of resignation.


The same day, Truscott emailed the co-ordinator of SFU’s temporary pool and said she would be available starting in May. The co-ordinator said Truscott would have to re-apply, meet with her and undergo a reference check.


Truscott sent a revised notice of resignation on Feb. 22 indicating April 12 would be her last working day — but still saying she planned to pursue her studies full-time. The program director signed an employment separation notice with “resignation” ticked off as the reason for leaving.


New position offered

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. 


The position wasn’t yet filled and Truscott indicated she was still interested and would be available for an interview, which was held on March 8. Truscott was aware she could still retract her resignation 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 proposed start date of April 29. Truscott accepted the job offer two days later.


On April 30, one day after she started in the new position, she was told by SFU’s HR department that her salary level and vacation accrual were being “re-set back to zero.” SFU considered Truscott a re-hire since she had resigned from her last job, so her pay was set at the entry level and her service date was April 29, 2013.


Truscott disagreed, citing a provision in the collective agreement that allowed seniority to be restored if an employee resigned but was rehired within 90 days.


The union filed a grievance, claiming Truscott’s service time and compensation should reflect the previous full-time position   she started in January 2013. 


The union argued Truscott did not intend to resign completely from SFU, only the program assistant position. This was borne out by her inquiries into other positions at the university that would fit better with her studies at the Burnaby campus, said the union.


2-step test to determine intent

For a resignation to be considered legitimate, it must pass a two-step test that has been established in many previous cases, said arbitrator Joan Gordon. The test involves a subjective intention by the employee to leave employment and objective conduct that indicates “a continuing effort to carry that intention into effect.”


Though the collective agreement had several provisions related to resignation — including the three-day period within which employees could retract a resignation — 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 Gordon.


She found the contention by Truscott and the union that she only intended to resign from her position and not her employment was a distinction that was irrelevant for the purposes of case law.


Gordon also found there was no evidence Truscott was led to believe she could resign from her program assistant position but maintain her employment status at SFU. The temporary pool co-ordinator didn’t give her any guarantee of employment when she inquired and nobody else said she would continue to be an employee.


Both Truscott’s letters of resignation “clearly and unequivocally express her intention to ‘formally’ resign from the position she held and, therefore, from her employment at SFU,” said Gordon. 


Truscott indicated she intended to pursue her studies and did not say 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, Truscott had to re-apply for the program assistant position she ended up taking, complete with a full background check.


The collective agreement provision allowing Truscott to maintain her seniority also 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 realization that her resignation negatively affected her contractual rights was not sufficient to warrant disregarding the collective agreement, said Gordon in dismissing the grievance.


 “(Truscott’s) submission of a second, revised ‘formal’ notice of resignation on Feb. 22, together with her failure to retract that notice when the prospect of another position 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.


For more information see:

Simon Fraser University and CUPE, Local 3338 (Truscott), Re, 2015 CarswellBC 1640 (B.C. Arb.).


Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.

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