Nurse claims resignation was misdiagnosed

Nurse resigned from hospital to take a temporary position under the impression she could still work there on a casual basis

This instalment of You Make the Call features a dispute between a nurse who was looking to take on a temporary position and the hospital that believed she resigned from her regular position.

Helen Lukianchuk was working in a full-time nurse position in the operating room (OR) at Woodstock General Hospital in Woodstock, Ont., when she applied for a job share position in the hospital’s obstetrics unit. She got the job in September 2005 and she left her OR position to take the new job, which was a part-time position in which she shared duties with another nurse. The two of them divided the hours of work between themselves on their own. She told her manager in the OR she would be available to work some casual shifts in the OR and subsequently did so occasionally.

In January 2007, Lukianchuk was offered a temporary position with the local public health unit from February to October 2007. The work was related to her job in the obstetrics unit and she felt the experience would increase her knowledge and skills. Lukianchuk asked for a leave of absence but it was denied. Her manager told her she had a choice to quit her position or “go casual.” Lukianchuk took this to mean if she resigned her job share she would have a casual position, which would give her time to work in the temporary job.

Lukianchuk decided to “go casual” and submitted a letter of resignation from her job share position, effective April 3, 2007. She wrote in the letter that she “would like to remain on staff on a casual basis.” On April 1, her manager told her at a meeting she wasn’t sure if Lukianchuk could remain as a casual nurse in the unit. However, Lukianchuk wasn’t worried because she still had her casual work in the OR and scheduled a shift in the OR for April 21.

Lukianchuk heard nothing more on the matter until April 11, when she received a letter from the hospital saying her request to remain on casual status was denied and her employment ended as of April 3. Shocked, she called the manager of human resources, who told her there was no casual position in obstetrics. When told of Lukianchuk’s OR shift for April 21, the HR manager checked into it and later told her the resignation stood. Lukianchuk said if she couldn’t be a casual nurse she wanted her job share position back, but the HR manager said she wasn’t allowed to rescind her resignation. She was also told employees could only transfer down to casual status with managerial approval.
You Make the Call

Should Lukianchuk’s resignation stand?
OR
Was she misled and should be allowed to revoke her resignation?

If you said she should be able to revoke her resignation, you’re right. The board found Lukianchuk chose to resign from her obstetrics job share position with the belief she would still be employed at the hospital as a casual nurse. If that belief was mistaken, it was because she had been misled and it had been presented to her as a choice.

The board found once Lukianchuk discovered she wouldn’t be able to work as a casual nurse, she made it clear she didn’t want to resign her share time position. She also said in her letter of resignation she wanted to stay at the hospital as a casual nurse. Since she was still receiving occasional shifts in the OR, she believed she still had that casual position. Her actions and the fact she had scheduled an OR shift for April 21 indicated she didn’t intend to end her employment relationship with the hospital.

“Her true intention was to resign from her obstetrics job share position, but to remain as a casual nurse, a status she believed she had,” the board said.

The board found the hospital breached the collective agreement by deeming Lukianchuk’s letter as an “absolute resignation in the face of her immediate protestation.”

The hospital was ordered to reinstate Lukianchuk to the obstetrics job share position and compensate her for any losses. See O.N.A. v. Woodstock General Hospital, 2007 CarswellOnt 9311 (Ont. Arb. Bd.).

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