Employee has to form “intention to quit” to count as resignation

Gilbert and Tandet Transport Inc., [2002] C.L.A.D. No. 196 (Canada Labour Arbitration)

Gilbert filed a complaint with HRDC under the Canada Labour Code against his former employer for failure to pay termination and severance pay in accordance with the act.

At first, an inspector appointed by HRDC found in favour of the employer after conducting an investigation into the matter. The employer’s position was no termination or severance pay was owing to Gilbert because he was not dismissed from his job but rather he had quit due to his failure to return to work subsequent to a recall notice.

The complainant was laid off temporarily by Tandet on March 9, 2000. Shortly thereafter he found a new job with another employer. While working at that job he received a recall notice from Tandet which stated if he failed to report to dispatch by June 9, 2000, his actions would be treated as a resignation.

The complainant tried to contact the employer prior to this date in order to determine the type of work to which he was being recalled. He had previously been employed part time and he wanted to know if he was being recalled to part-time or full-time work.

He required this information since he was working in his new job and therefore did not want to leave that position if he was only going back to part-time work.

He called dispatch a number of times but was not able to speak with the individual, Brown, who could tell him what kind of work he was being offered. He left messages for Brown, but did not hear back from him. Brown did receive the messages and tried to call Gilbert back, but every time he called no one answered as it was during the day and Gilbert was at work in the other job. Gilbert then received a notice dated June 22, 2000 that his resignation had been processed by the employer.

On appeal the referee found Gilbert had not resigned from his job and was entitled to termination and severance pay. In order to resign the employee must first form an intention to quit, and then he must say or do something which is consistent with carrying out that intention.

In this case Gilbert had not formed an intention to quit. He never got to the point where he could make such a decision as he was still trying to get the information he required from the employer in order to make such a decision.

Therefore Gilbert had been dismissed from his employment and was owed termination and severance pay.

To read the full story, login below.

Not a subscriber?

Start your subscription today!