You make the call
This instalment of You Make the Call involves a worker who was deemed to have resigned when she didn’t return at the end of her maternity leave.
Bridget Gainey was hired to be a dispatcher for S&P Carrier, a trucking company based in Scotland, Ont., in February 2014. She was still in that position when she became pregnant in late 2015.
Over the course of the first half of 2016, Gainey began feeling stressed at work and was worried it was affecting her pregnancy. On June 22, S&P gave her a letter stating that “all employees’ future pay will be prorated to account for any time absent from the office during business hours. She and other employees were required to notify management of upcoming known absences so it could decrease any disruption to the company’s operations, and time taken for personal leaves and appointments would be deducted from their final billed working hours.
S&P also indicated that employees were not to use company business equipment — such as telephones and computers — for personal activities or non-S&P business.
This letter added to Gainey’s stress, as she had to leave the office occasionally for doctor’s appointments. She had an appointment that very afternoon, after which her doctor placed her on stress leave. Gainey notified her manager about the leave and later provided a note from her doctor. The company instructed her manager to deal with her at “arm’s length” during her stress leave.
Gainey remained on stress leave until her maternity leave began in October. Her expected return-to-work date following her maternity leave was on or around Oct. 15, 2017.
In early November 2016, Gainey requested a letter of employment from her manager for her mortgage company, as she was moving into a new home. S&P provided the letter stating she was a full-time employee on maternity leave. For the rest of Gainey’s maternity leave, there was little communication between her and the company.
On Oct. 3, 2017, Gainey emailed her manager to find out the best way to proceed for her return to work. The manager replied the next day asking when her scheduled return date was. He wanted her to return soon as the company was understaffed.
Gainey responded that she was scheduled to return “around the middle to the end of October” and asked what date worked best for the company. She also asked again about how to proceed and if she needed to provide any documentation. She wanted to set up a date when a manager was present to get her reacquainted with everything.
Gainey’s manager didn’t reply, as she had “answered a question with a question.” He wanted a simple date from Gainey so they could make arrangements.
A week later on Oct. 10, Gainey emailed her manager again to follow up, saying she needed to make childcare arrangements before she went back to work, so she needed to know what was happening. Her manager again didn’t respond as Gainey still didn’t provide her return date.
On Oct. 16, Gainey called S&P and left a voicemail stating she intended to return to work. She didn’t go into the office because management was often not in the office and she felt she might miss them. However, her manager wasn’t made aware of the voicemail.
More time passed and Gainey didn’t hear back from S&P. She wasn’t sure what to do. No further communication passed between her and S&P until Nov. 21, when the company sent her a letter that stated that she hadn’t provided a return date and had not been in contact for more than a month. As a result, S&P considered her to have resigned her employment and asked her to return all company property by Nov. 24.
You Make the Call
Was the worker unjustly dismissed?
OR
Did the worker resign from her employment?
If you said the worker was wrongfully dismissed, you’re right. The adjudicator noted that resignation had two elements: a subjective intention to leave employment and “objective conduct manifesting a continuing effort to effect such intention.”
The adjudicator found that Gainey’s conduct did not support the idea that she intended to resign after her expected return to work after maternity leave. All of her emails to S&P and her voicemail indicated that she wanted to continue working with the company, but her manager stopped communicating with her, said the adjudicator.
“Inexplicably, Ms. Gainey had not heard back from the employer since her Oct. 4 email,” the adjudicator said. “While [her manager] indicated he was instructed to deal with Ms. Gainey during her leave at arm’s length, that arose in the context of stress leave. However, in October 2017, Ms. Gainey was returning to work from maternity leave, a materially different context.”
The adjudicator determined Gainey didn’t resign her employment and it was S&P that unjustly ended the employment relationship through its unilateral action of sending the November 2017 letter.
For more information, see:
• Gainey and S&P Carrier Ltd., Re, 2019 CarswellNat 2186 (Can. Labour Code Adj.).
