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I thought you quit

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  • 1. “I thought you quit?” Agenda 1. What is a resignation? 2. Essential considerations before accepting a resignation 3. Pitfalls of resignations 4. Employer obligations following a resignation 5. Retirements and the Human Rights Code Proper handling of resignations and retirements George A. Leibbrandt, Partner
  • 2. • Resignation: “Formal renouncement or relinquishment of an office. It must be made with intention of relinquishing the office accompanied by the act of relinquishment”. - [Black’s Law Dictionary] (1)Evincing an intention to resign; followed by (2)An action consistent with that intention; 1. What is a resignation?
  • 3. • Example: – University undergoes organizational change – Director of Relations writes to resident stating that he believes the change to be a demotion and that he will be seeking other employment – President treats letter as a resignation despite Director’s insistence that he was not resigning – Is this a resignation? 1. What is a resignation?
  • 4. • Not a resignation • The Director made it clear after the letter had been sent that he was not resigning – No clear unequivocal intention of resigning • Held to be a termination without cause • See: Moore v. University of Western Ontario, 1985 CarswellOnt 877 1. What is a resignation?
  • 5. Retirement: “Termination of employment, service, trade or occupation upon reaching retirement age, or earlier at election of employee, self-employed, or professional”. - [Black’s Law Dictionary] 1. What is a resignation?
  • 6. a) How did the employee resign? – Always get a signed and dated letter! – Letter should confirm that the resignation is voluntary – Letter should confirm actual date of resignation 2. Essential Considerations before accepting a resignation
  • 7. b) The Facts are Everything - Long service or short-service employee? -Has anything major occurred in period immediately preceding resignation? -Has the employee’s salary and/or job responsibilities recently been altered? -Would an objective observer consider the employee to be sophisticated? 2. Essential Considerations before accepting a resignation
  • 8. c) Does Contract specify employee notice required? - Employee needs to provide “reasonable notice” of resignation if contract is silent - Note: notice that employee has to provide is not the same amount of notice that an employer dismissing an employee would have to provide 2. Essential Considerations before accepting a resignation
  • 9. c) Does Contract specify employee notice required? • Blackberry Limited v. Marineau-Mes, 2014 ONSC 1790 (CanLII): - Contract stated that employee had to provide six (6) months notice before resigning - Employee was leaving to join Apple Inc. and only provided two (2) months notice - ONSC upheld the six (6) month notice period in the contract 2. Essential Considerations before accepting a resignation
  • 10. c) Does Contract specify period of notice •Asphalte Desjardins inc. c. Commission des normes du travail: - Contract specified employee notice required - Employee provided notice required - Employer “waived” notice to accelerate departure and stop paying - Legitimate? Stay tuned: Supreme Court of Canada to decide 2. Essential Considerations before accepting a resignation
  • 11. d) Was this a resignation or a retirement? - Retirement should be treated separately from an ordinary resignation 2. Essential Considerations before accepting a resignation
  • 12. a) Employee silence b) Mixed messages c) “Spur of the moment” decisions d) Notice of resignation too short, too long 3. Pitfalls of Resignation
  • 13. 3. Pitfalls of Resignation – a) Employee Silence • Where the employer does not hear anything from the employee – i.e. the employee does not show up for work • A resignation falls within the exclusive purview of the employee – Cannot be “deemed” by the employer
  • 14. • If employee is not responding or doesn’t show up for work, employer needs to act with utmost fairness • Proper response: write clearly worded letter • If no communication received by employee by specified date, then employer will assume job abandonment • Make sure letter is received • If long-service employee, consider sending 2nd letter 3. Pitfalls of Resignation – a) Employee Silence
  • 15. • Lack of clarity – There needs to be clear and unequivocal evidence that the employee has intended to resign – No conditions should be attached to the resignation 3. Pitfalls of Resignation – b) Mixed Messages
  • 16. • “Whether words or actions equate to a resignation must be determined contextually. The surrounding circumstances are relevant to determine whether a reasonable person, viewing the matter objectively, would have understood [the employee] to have unequivocally resigned”. – See: Kieran v. Ingram Micro Inc. 2004 CanLII 4852 (ONCA) 3. Pitfalls of Resignation – b) Mixed Messages
  • 17. • In Kieran v. Ingram Micro Inc., the Plaintiff stated that he couldn’t work at the company’s current location if X employee was named as the new President • X was named as the new President and the employer treated the Plaintiff’s statement as a resignation • Ontario Court of Appeal held that the Plaintiff was terminated without cause 3. Pitfalls of Resignation – b) Mixed Messages
  • 18. • Justice Lang writing for the ONCA: “In those circumstances, given the principle that a resignation must be clear and unequivocal, it cannot be said that Mr. Kieran’s statements amounted to a resignation. Viewing his statements contextually, Mr. Kieran did not resign, and would not have been seen by a reasonable person to have done so”. 3. Pitfalls of Resignation – b) Mixed Messages
  • 19. • Another Example: – Car salesman refuses to sign sales agreement which restricts his commission – Employer tells car salesman to sign agreement or he will be terminated – Car salesman still refuses to sign and does not return to the workplace – Is this a resignation? 3. Pitfalls of Resignation – b) Mixed Messages
  • 20. • Court holds that employee was terminated without cause – No unequivocal voluntary action to resign • Court awards compensation • See: Gallagher v. John Bear Pontiac Buick Cadillac Ltd., 2006 CarswellOnt 409 (S.C.J.) 3. Pitfalls of Resignation – b) Mixed Messages
  • 21. • A resignation during a spontaneous outburst in highly charged emotional circumstances can undermine its essential voluntariness – See: Wilson v. Legacy Trust, 2014 ONSC 2070 • Moreover, sometimes an employee’s actions are equivocal such that his actions canvassed cannot be construed as a voluntary resignation 3. Pitfalls of Resignation – C) “Spur of the Moment” Decisions
  • 22. • Example: – Employee with 26 years of service submitted resignation on April 2, 2012 – On April 16, 2012, employee verbally advised employer that he wanted to rescind resignation – This was followed by a letter confirming the same on April 20, 2012 – Employer refused to allow employee to rescind resignation 3. Pitfalls of Resignation – C) “Spur of the Moment” Decisions
  • 23. • Arbitrator considered contextual factors: – Long-service employee – Tried to rescind resignation soon after employee resigned – Employee suffered from severe depression • Employee was off his medication – Employee recently went through a divorce – Employee recently declared bankruptcy 3. Pitfalls of Resignation – C) “Spur of the Moment” Decisions
  • 24. • Arbitrator held that the employee did not have the subjective intent to resign from his position – The employee (unionized) was reinstated to his position – The employee was also awarded 4 months of compensation, subject to mitigation • See: Re Community Living Chatham-Kent and OPSEU, Local 148 (Butler), 2014 CarswellOnt 1126 (Steinberg) 3. Pitfalls of Resignation – C) “Spur of the Moment” Decisions
  • 25. • Where the evidence will show that the employee was led to believe that he/she had to resign/retire • Example: employer tells employee that she can resign or be fired and employee subsequently resigns – Is this a voluntary resignation? 3. Pitfalls of Resignation – C) Employer compelled resignation
  • 26. • No! • If an employer tells an employee to quit or be fired, this is an involuntary resignation and will be treated as a termination – See for example: Aubin v. H.B. Group Insurance Management Ltd. (1987) 62 O.R. (2d) 191 3. Pitfalls of Resignation – C) Employer compelled resignation
  • 27. • Up until the effective date of the resignation, the employer must: – Continue to pay the employee regular wages; – Continue the employee’s benefits coverage (if applicable); and – Pay the employee all accrued but unused vacation 4. Employer obligations following a resignation
  • 28. • Other considerations: – An employee can still be dismissed for cause during a resignation notice period – An employee can still be constructively dismissed during an employee notice period – Employment Standards Act, 2000, sections 56(1) (b), 63(1)(b), 63(1)e and 63(3) 4. Employer obligations following a resignation
  • 29. • Before: “age” in the OHRC was defined as between 18-65 – Result of this was that an employer could create mandatory retirement policies and not violate the OHRC • Change on Dec. 12, 2006: “age” in the OHRC amended to be just 18 years+ – The result is that most mandatory retirement policies will violate the OHRC Retirement and the Ontario Human Rights Code (“OHRC”)
  • 30. • Can an employer have a mandatory retirement policy that doesn’t violate the OHRC? – Yes, but only if the policy can be shown to be a “bona fide occupational requirement” • Employers can also develop “retirement programs” that aren’t mandatory Retirement and the Ontario Human Rights Code (“OHRC”)

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