Both subjective and objective tests must be met; employee did not have true intention to leave his job.
Having already quit once in a huff only to return to work after a few days, a postal worker grieved when his employer accepted his second spontaneous resignation a couple of months later. The union argued that the employer’s unwillingness to allow the worker to rescind his second resignation amounted to a termination.
Employed initially by a contractor who provided services to the post office, E.E. secured part-time mail delivery work with the post office. In August 2009, he became a full-time mail carrier on a rural route.
E.E.’s employment record indicated a number of performance issues, mostly concerning mis-sorted mail — he had the highest number of complaints in the depot.
Apparently overwhelmed by the volume of mail during the Christmas rush of 2009, E.E. had been unable to sort all his mail. Confronted by two managers, E.E. said that there was too much mail and that it would not be possible to deliver it all. In the event that he was able to sort it, he told the managers that it would be up to them to deliver it. E.E. then invited them to fire him. When the managers declined, E.E. quit, handing over his keys and leaving the property.
However, E.E. submitted no letter of resignation and two days later he resumed his regular duties following negotiations that were conducted on his behalf by a union representative.
“I am quit”
Two months later, E.E. quit again in another moment of frustration. Prompted by his manager, E.E. this time made clear his intent with a note that said, “I am E.E. I am quit.” Again he surrendered his keys and left the property.
The next day E.E. contacted his union representative and told her that he wanted to return to work.
However, this time the employer said no. The manager declined to meet with the union and refused to rescind its acceptance of E.E.’s resignation.
The union grieved.
The employer had taken advantage of E.E.’s frustration to effect a kind of termination, the union said. E.E. had acted in the heat of the moment but he had quickly changed his mind.
In any case, E.E.’s actions did not meet the standard for an effective resignation, the union said. A resignation must include evidence of both a subjective intent to quit and objective conduct that demonstrates an attempt to carry out the intent. That objective element was absent in this case, the union said, as E.E. had recanted almost immediately.
E.E. may have come to regret his decision, the employer said, but his resignation was informed and voluntary. He had tried to quit two months earlier but was taken back despite performance deficiencies. He was given a second chance and he quit again. When questioned about his intentions at the time, E.E. affirmed his decision. He turned in his keys and left company property. Taken as a whole, his actions provided both subjective and objective evidence of his intent to resign, the employer said.
Objective test not met
The Arbitrator agreed that E.E.’s attempt to quit satisfied the subjective element of the test. However, his post resignation behaviour did not meet the objective requirements of the test.
Caselaw rejects the notion that a resignation is a “done deal” once it is simply signed by the employee, the Arbitrator said. The objective part of the test is necessary because it creates what amounts to a cooling off period and prevents employers from “pouncing on an opportunity to rid themselves of a problem employee.”
“I accept the Union’s argument that the grievor’s post-quit conduct, objectively assessed, does not support a finding of a true continuing intent to resign. He quickly recanted. He did not seek or obtain employment with another employer. In fact he continued to apply for [positions with the employer]. It was clear that this was his preferred employer, even despite the absence of any family income for an extended period … considering the totality of the circumstances, I hold there was no effective resignation because the objective conduct test was not met. On the evidence, the grievor did not have a real and continuing intention to resign following the physical act of quitting …”
The grievance was upheld.
