Employer incorrectly assumes employee gave two weeks’ notice

Employee angrily said she quit but her actions afterwards indicated she didn't

An Ontario employer jumped the gun when it assumed an angry employee quit her job and provided two weeks’ notice without actually confirming that was the case, the Ontario Labour Relations Board has ruled.

Patricia Kelly worked at a Harvey’s restaurant in Ontario. On Nov. 11, 2014, Kelly found out that the restaurant’s general manager was not sending her to a training program that she wanted to take. Kelly was angry about it and left the restaurant on her scheduled break, saying that she quit. However, at the end of her break she returned to the restaurant.

The general manager told the owner of the restaurant that Kelly had quit, and he indicated he wanted to hear it directly from Kelly before accepting that. When Kelly returned, the owner met with her in his office.

According to the owner, Kelly confirmed she was quitting and he told her he accepted her resignation. He assumed she was giving her two weeks’ notice at that point, though she didn’t specifically say so — he assumed two weeks because that was the normal amount of notice employees gave for resignations. However, he didn’t confirm with Kelly that she was actually giving her two weeks’ notice of resignation.

Kelly continued to work her scheduled shifts over the next one-and-one-half weeks. Eight days after the incident on Nov. 19, she received a job offer from another employer — following an interview she had a few days previously — which she accepted. She provided the restaurant with a written notice of resignation the next day stating that her last day of work would be Dec. 5.

However, the general manager told Kelly she didn’t have to work for the remainder of her notice period. Kelly sought clarification and was told she had given notice of resignation on Nov. 11, so her last day of work would be Nov. 25 — meaning she only had two shifts left for which she would be paid.

Kelly filed a claim for termination pay up to Dec. 5, claiming she didn’t actually quit her job on Nov. 11 and she didn’t give notice of resignation until Nov. 21. An employment standards officer sided with Kelly and ordered Harvey’s to pay Kelly termination pay for terminating her employment early. Harvey’s appealed the decision to the board, arguing Kelly quit her job and therefore wasn’t entitled to termination pay.

The board found Kelly said words to the effect that she quit as an angry response to not being sent to the training session. However, the evidence showed that she didn’t have a subjective or objective intention to quit that day — she returned to work after her break and continued to work without incident. These actions were “simply not consistent with an individual who quit her job,” said the board.

The board also found that the owner had a discussion with Kelly, but never actually confirmed a date of resignation. He assumed she was giving two weeks’ notice but didn’t actually confirm that was the case. At no point then or subsequently was Nov. 25 discussed with Kelly as the date of her final shift, said the board.

In addition, the restaurant’s general manager never discussed Nov. 25 with Kelly and perhaps “specifically avoided telling Ms. Kelly that her last day of work would be Nov. 25, 2014,” said the board. Given Kelly did not quit her job on Nov. 11, Harvey’s had no basis to terminate her employment on Nov. 25 without notice.

“The employer chose to make use of the events of Nov. 11, 2014, so as to deem Ms. Kelly’s employment to be at an end effective Nov. 25, 2014,” said the board.

The board found Harvey’s violated the Ontario Employment Standards Act, 2000, when it failed to pay her until her indicated date of resignation of Dec. 5, 2014. Harvey’s was ordered to pay Kelly compensation for two weeks’ salary plus vacation pay. See Nunes & Murphy Restaurants Inc. v. Kelly, 2016 CarswellOnt 5064 (Ont. L.R.B.).

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