Ontario Employment Standards Act requires employees who resign after receiving notice of dismissal to provide two weeks’ notice for severance pay entitlement
An employee who was terminated after refusing to relocate and then quit during the notice period has lost his bid to receive severance pay from his former employer.
Jerome Devost was hired by IBM Canada in Ontario on Nov. 1, 2004. In January 2012, Devost asked if he could work from home if he moved to Quebec and the company agreed that the arrangement could work. He began working from home shortly thereafter and did so for the next five years, receiving positive performance reviews.
In August 2016, IBM sent Devost a letter informing him that the work he was performing was being moved to the company’s office in Ottawa, where IBM would have an integrated set of teams working together. As a result, the company wanted Devost to relocate to Ottawa where he could interact in person with his team and the other teams with whom it would be working. Devost was given 30 days to consider IBM’s request.
Devost interatced remotely with other IBM employees outside of Ottawa already, so IBM’s proposal didn’t make sense to him. He also wasn’t ready to move, so he advised that he wasn’t willing to relocate.
IBM responded to Devost’s answer by informing him on Sept. 15 that, since he was unwilling to work out of the Ottawa office, his employment would be terminated in six months effective March 15, 2017.
Devost tried to negotiate an alternate arrangement that could benefit both himself and IBM, but IBM remained firm. He made inquiries to the Ontario Employment Standards Branch about his options, and he came to believe that he would have to leave his employment before he could file a complaint. Devost felt he was being constructively dismissed, so he decided to quit his job and lodge a complaint afterwards.
On Oct. 31, Devost told IBM it would be his last day with the company. In a letter, he explained that he was leaving immediately because he didn’t want to spend the next few months working in an environment that made him feel bitter. He could have continued to work from home during that period but he didn’t trust IBM enough to continue with the company for any period of time.
A few weeks after resigning from IBM, Devost found another job at a lower rate of pay. He filed a complaint with the Employment Standards Branch requesting an order for severance pay under the Ontario Employment Standards Act — which has a clause allowing an employee who resigns after receiving notice of termination to still receive severance pay — but an employment standards officer reviewed his situation and declined to issue such an order.
Devost applied to the Ontario Labour Relations Board to review the officer’s decision, arguing that IBM constructively dismissed him and he was entitled to severance pay. IBM countered that it gave Devost six months’ notice of termination and he resigned his employment before the end of the notice period.
The board agreed with IBM that the company provided notice of termination greater than the legislative minimum — six months. It found that while it requested Devost relocate, Devost refused this request and this led to the company to provide notice of termination. Once the notice had been provided, there were no changes in the terms and conditions of Devost’s employment that could constitute constructive dismissal during the six-month working notice period. Once the notice had been given, Devost was allowed to continue to work from home under the same conditions he had been for five years, said the board.
“While the situation may have amounted to a constructive dismissal had IBM actually required (Devost) to relocate to Ottawa without providing adequate notice of the change, this is not what occurred in the present case,” said the tribunal. “Instead, the proposed move from Quebec to Ottawa never took place. Once (Devost) advised IBM that he would not accept the proposed change, IBM opted to give him working notice that his employment would be terminated effective March 15, 2017, and never required him to relocate to Ottawa at any point prior to that date.”
The board found that Devost’s circumstances involved “an actual termination of employment” rather than constructive dismissal. The Ontario Employment Standards Act, 2000 allows for the possibility of an employee to resign and still receive termination pay after being given notice of termination from the employer, but the act requires the employee to give two weeks’ notice of resignation during the statutory notice period. Devost resigned the day he provided notice and therefore wasn’t entitled to severance pay under the act, said the board.
See Devost v. IBM Canada Ltd., 2018 CarswellOnt 19880 (Ont. Lab. Rel. Bd.).
