Resignation, Constructive
Discharge,
or Your Job!
By Daniel Comeau,
Grievance Department
In this article, I will describe
circumstances that we hope none of you will have to endure. What I
will describe is a situation where an employee has “voluntarily”
resigned from employment, but either has a subsequent change of mind
or feels that his or her manager was viciously adversarial or
confrontational that lead to the “resignation.” I will then provide
you with some steps to either keep your job or put you in a better
position to grieve and win your job back.
I use quotation marks in reference to the terms “voluntary” and
“resignation” because, in those situations that I just introduced,
we believe they aren’t voluntary or resignations at all. Instead,
they are situations rife with misunderstandings, snap misjudgments,
and coercive or persuasive management acts that lead to what looks
like a “resignation.” However, we believe these situations can be
seen as “constructive discharges” and there are actions you can take
in order to either maintain your position as an employee or grieve
the situation as a “discharge.”
A constructive discharge occurs when management intends to terminate
your employment, as shown through its words and conduct, that an
employee relies upon to his or her detriment. In other words,
management may not say, “you’re fired,” but they may mean to fire
you by making your job nearly impossible to complete or “persuading”
you to resign. Once you’ve resigned, management is sitting in a
great situation because they don’t have to take you back or they may
refuse to process a grievance (because there was no termination).
I will begin by assuming the following: You have already been to a
meeting and, in that meeting, you have indicated to your manager
that you will resign. While arbitrators tend to look at several
factors in deciding to rule in favor of the member, the following
steps will put you in a much better position to win than doing
nothing or even grieving the “resignation.”
First, it is better never to sign a document indicating that you
have resigned, because a written record implies that you have fully
contemplated your actions and have made a rational decision. Second,
you must remember that you must take immediate action by contacting
your union representative. Explain the situation to the union
representative so that he or she is aware of the situation. Second,
you must immediately contact your manager to claim a
misunderstanding and state that you withdraw any previous statements
concerning “resignation.” This may be an unpleasant step, but the
words and actions must come from you. Third, you must write down
your withdrawal of any previous statement concerning resignation and
state that you intend to show up for your next scheduled shift. You
must hand this in to your supervisor and provide a copy to the
Union.
Finally, you must show up for your next scheduled shift and clock
in. Do NOT ask beforehand whether you have permission to clock in or
whether your shift has been covered. The purpose of doing all of the
above is to create a record that you never intended to permanently
resign, and that it places management in the position to decide
whether or not to send you home. If they do, then you are in a much
better position to claim that you were terminated, and management
will then have to prove that sending you home was supported by just
cause (over and above simply claiming that you resigned).
REMEMBER, the clearer that you are in your statements and actions
concerning your continued employment the better. You want a record
that indicates your desire to remain employed outweighs whatever
indications you’ve given that you wish to quit. You must also
remember that doing all of these things may convince a manager to
keep you, or bring you back onto the schedule, which would be the
best possible scenario for you. Finally, remember that all of these
actions must be immediate, and you cannot wait.
In conclusion, we would like you to know that there are no
guarantees, and that different arbitrators will look at cases
differently, and sometimes the above steps may not result in a
complete “win” by getting you your job and back pay. However,
failing to take the above steps will more likely than not result in
a “resignation” remaining in effect.
Before concluding, however, I would like to take this opportunity to
indicate certain behaviors that are not constructive discharge or
behaviors that are actionable as “hostile work environments.” If a
manager simply isn’t nice to you, or if your manager appears to
favor one employee over another, this will most likely not be viewed
as grounds for you to “quit” and then later withdraw the
resignation. Indeed, for harassment to be actionable, it must be
both severe and pervasive, which means that it must be sufficiently
terrible and continuous in order for state or federal agencies to
get involved. Simply telling you to do your job in a stern way or
telling you to stop complaining is most likely not severe or
pervasive enough to be unlawful harassment. Where there is
name-calling, the name-calling is continuous, and it is in front of
customers and co-workers, you must notify your union representative
so we may look into it. Please keep this and the above steps in mind
the next time you are faced with a situation where you think a
manager is on your case and you feel like quitting, or your manager
is talking to you about quitting.
The bottom line is that arbitrators understand that you have the
right to quit whenever you want to and that management will make
this argument each time they have a “resignation” from you. This is
why it is important that you take the above steps to establish that
you never intended to “resign” at all, and that it was simply a
misunderstanding or a mistake. Who knows, you may even be able to
keep your job before even getting to the final steps!
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