Employee wanted to take three weeks of vacation leading up to and including last day of work
An Ontario employer should not have unilaterally changed an employee’s date of resignation when she took several vacation days following her last day of work until her stated resignation date, an arbitrator has ruled.
Rhonda Gorman was a planning data analyst for the Town of Whitby, Ont., beginning on Jan. 18, 2010. She went on maternity leave from Nov. 12, 2011 to Nov. 12, 2012. While on leave in March 2012, Gorman applied to take vacation days from Dec. 26 to Jan. 2, 2013, following statutory holidays on Dec. 24 and 25. Her request was approved.
When Gorman returned to work in Nov. 2012, she asked to carry over eight vacation days she still had outstanding, to be used in 2013. The request was approved, though she didn’t decide on any specific dates at that point.
Gorman had also been looking for another job closer to her family and she eventually found one. She was hired in December with a start date of Jan. 14, 2013. Gorman told her manager she would be leaving and wanted to use her eight carryover vacation days following her existing vacation days, starting on Jan. 2. She also provided a letter of resignation stating her last day of work would be Jan. 11, 2013, and she would be using her carryover vacation days from Jan. 2 to Jan. 11.
The town had some issues with Gorman’s resignation letter. In it, she didn’t indicate when her last day worked would be and it didn’t want to allow her to book vacation days after her last day worked. The town’s HR manager suggested it would pay Gorman a lump sum on her final paycheque for any unused vacation.
Gorman was told she had to work at least one full day after her vacation and she had to work both before and after statutory holidays in order to be paid for them, as per employment standards legislation. If she didn’t come in and her last day worked was Dec. 21, then she would be paid for her outstanding vacation days but not for the holidays, the town said.
A few days before her last day before her vacation, the town filed a record of employment that indicated Gorman’s date of resignation was Dec. 21. Gorman also told many people that she was leaving as of that date. She received a final paycheque on Dec. 21, and filed a grievance claiming the town unilaterally changed her resignation date without her approval.
The arbitrator found Gorman informed the town that her resignation date was Jan. 11 and she would be using vacation days — some already booked, some still to be used — up until that date. Though the town advised there were problems with vacation and statutory holidays, it didn’t actually tell Gorman that if she didn’t work at least one day after Dec. 21, it wouldn’t process her resignation as she gave it. In addition, Gorman never agreed to change her date of resignation to Dec. 21 throughout the dispute over her vacation days, said the arbitrator.
“The evidence and agreed facts do not establish that (Gorman’s) actions in declining to return to work for a day after her last day of vacation, whenever that turned out to be, indicated any intention to resign, retire or abandon her work prior to Jan. 11, 2013,” said the arbitrator.
The arbitrator found the Town of Whitby unilaterally changed Gorman’s date of resignation, effectively terminating her employment as of Dec. 21, 2012, rather than waiting until her stated date of resignation. See Whitby (Town) and CUPE, Local 53 (Gorman), Re, 2013 CarswellOnt 9515 (Ont. Arb. Bd.).
