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HomeMy WebLinkAbout1987-1772.Mawani.90-10-07GRIEVANCE CPMMISSION DE SElTLEMENT REGLEMENT BETWBEN BEFORE: FOR THE GRIEVOR FOR THE EMPLOYER HEARING: IN TEE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Mawani) - and - The Crown in Right of Ontario (Ministry of Government Services) R. Verity Vice-Chairperson I. Thomson Member A. Merritt Member C. Wilkey Counsel Cornish Roland Barristers & Solicitors L. McIntosh Law Officer Crown Law Office Civil Ministry of the.Attorney General May 8, 1989 September 19, 1990 Grievor Employer - - 2 - DECISION Fatima Mawani has been employed as a Clerk-Typist 3 in the Realty Services Rranch of the Ministry of Government Services in Toronto. Her seniority date is March, 1979. Ms. Mawani submitted a written resignation dated February 13,; 1987 effective February 28, 1987. However, on 3une 18, 1967, she filed a grievance alleging dismissal without just cause “in that my resignation was accepted by management knowing that I was on LTIP at the time”. She seeks reinstatement with compensation for lost wages and benefits. By way of background the following facts are relevant. In August, 1985 the;grievor began experlenclng health problems as a result of degenerative disc disease. In February 1986 she was placed on LTIP benefits. The grievor did work part-time for rehabilitative purposes from May 15 to October 30. Full-time LTIP benefits resumed in November 1986 after she was injured in an automobile accident. The grievor was not hospitalized as a result of the accident and anticipated that she would be off work for approximately,6 weeks. However she did not return to work prior to submitting her resignation. In addition, the grievor has experienced serious domestic difficulties In recent years. She separated from her husband in 1984 and assumed responsibility for the care of a young child. In October, 1985 she was hospitallzed for a hand operation and temporarily transferred custody of the daughter to her husband. In January, 1986 the husband refused to return the child and a custody battle ensued. Subsequently in January 1987; the husband was awarded custody of the child. c I -3- The grievor submitted the letter of resignation to her supervisor John Jurgen, Manager of Finance and Administration, Land Management Branch. Because of the unusual circumstances, Mr. 3urgen spoke with the grievor for approximately one hour to ascertain the reasons for the resignation. According to Mr. 3urgen, the grievor cited health reasons and the desire to move to a warmer climate. He recalled that she wanted to settle in her native East Africa or Pakistan and that she had received a financial settlement from her husband and had lost custody of her daughter. The supervisor testified that the grievor appeared happy and answered his general inquiries rationally and responsively. He also stated that she spoke of being in the process of disposing of her apartment and selling her automobile in preparation to leave Canada. Mr.. 3urgen testified that he asked if she had considered alternate arrangements such as going to Florida in the winter months. According to Mr. 3urgen, “she wouldn’t consider any alternatives”. The supervisor promptly referred the grievor to the Human Resources Office. Mrs. Peggy Roe is Benefits Advisor with the Human Resources Branch of the Ministry. Mrs. Roe testified that she saw the grievor the day that the resignation was submitted. According to her recollection, she spoke with the grievor for approximately l/2 hour and advised that she was making a big mistake. According to Mrs. Roe, she explained the various benefit options available for pension contributions including deferring the decision for nine months. Mrs. Roe stated that she emphasized the need to provide “medicals” to ensure continuation of LTIP coverage but did not specifically discuss the concept of a leave of absence. Mrs. Roe further stated that the grievor cited herpersonal circumstances including her health as the reason for the resignation. According to Mrs. Roe, the grievor “was adamant” and said that she was going home for good. I On February 25, the grievor returned to Mrs. Roe’s office and signed the dit 1nterv::ew Report and the Application for Superannuation benefits. Mr. 3urgen testified that some seven to ten days after his initial meeting with the grievor sh& telephor,ed him to urge him to use his influence to speed up the payment of I beriefits. In March 1987, the grievor was advised by Confederation Life both by letter and by telephone that she was required to have an independent medical exdmination on March 26, 1987. However, the grievor was unable to keep that appointment because she left for Tanzania on that date. The grievor was greatly disappointed with her life in Tanzania - she was unable to work without a work permit, there was no medication available and the economic conditions were uns’table. She returned to Canada in mid-May or shortly thereafter and was advised that her LTIF’ benefits had been terminated effective April 30, 1987 due to her failure to at~tend the medical examination. At some point in June 1987, the grievor reattended at Mr. 3urgen’s office. In a brief meeting she told him that she had made a big mistake and acc6rding to his recollection enquired as to her rights under the Collective Agreement. Mr. 3urgen advised that she had no rights as she had resigned. I In her testimony, the grievor maintains that she was suffering mental distress and that her.mind was confused at the time the resignation was subm;itted. She maintains that she made no attempt to determine the feasibility of the move to Tanzania. The grievor’s recollection of the events surrounding the resignation differed substantially from the evidence of both Mr. 3urgen and Mrs. -5- Roe. She specifically denied discussing any personal matter with either her supervisor or Mrs. Roe. She denied telling Mr. 3urgen that she had received a financial settlement from her husband or that Mrs. Roe had reviewed any option with her including the recommendation that she should not quit. In sum, it was the grievor’s evidence that the Employer failed to suggest any alternate option to resignation and that she was under the mistaken assumption that she had to resign in order to leave Ontario. The Union submits there was no voluntary resignation because of the grievor’s impaired judgment and physical state at the time of the purported resignation. Ms. Wilkie also contended that the Employer contributed to the misapprehension of the grievor’s rights by failing to provide essential information to prevent the resignation. Finally, the Union contends that when the grievor returned from Tanzania the Ministry should have reconsid,ered its position and reinstated the grievor. In support, the Union referred the Board to the following authorities: Re Workers Compensation Board and Workers Compensation Board Employees Union (19871, 31 L.A.C. (3d) 129 (Larson); OPSEU (Anonymous) and Ministry of Government Services 268/83 (McLaren); and OPSEU (Lionel Mantha) and Ministry of the Environment 423/85 (Verity). The Employer argued that the grievor had both the physical and mental capacity to resign and that her resignation was voluntary and intentional. It was further argued that if the grievor was under a mistaken assumption as to her rights, then in the absence of any misrepresentation, the Employer is under- no obligation to counsel an employee who wishes to resign. Ms. McIntosh relied upon the following: Murray and Ministry of Revenue 34/76 (Eeatty); Re Metropolitan -6- Authority and Amalgamated Transit U”ion_Cocal 508 (1988), 1 L.A.C. (4th) 20 I (Cbtter); ar.d Re Crouse-Hinds Canada Ltd. and United Automobile Workers (1981), 3 1 L.A.C. (3d) 230 (H. D. Brow”). The basic principles in resignation cases are neatly sunnnarized in Drown and Heatty in their text Canadian Labour Arbitration (3 Ed.) at p. 7-181: In determining whether or not a” employee has quit his employment, arbitrators are generally agreed that the basic task confronting them is to ascertain the intention of the employee involved. That is, the arbitrator must determine whether or not the employee actually intended to voluntarily sever the employment relationship. There is also a consensus of arbitral opinion stenaning from the earliest cases, that the act of quitting embrases both a subjective intention to leave one’s employ, and some objective conduct rhlch manifests an attempt to carry that intention into effect. On the issue of voluntary resignations, the Grievance Settlement Hoard’s eariiest authority is the decision of arbitrator Beatty in Murray and Ministry Revenue 34176, supra. At pp. 13 and 14, Mr. Beatty sets out the following rationale: . ..arbitrators have distinguished between two factually unique, though conceptually related circumstances in which a” employer may claim that an employee has quit his employment. In the first of these, the employee does not expressly declare her intention to quit her employment and the arbitrator is asked to draw that inference from a certain course of conduct or behaviour, such as a prolonged absence, which was pursued or adopted by the employee. A review of the reported awards in the private sector reveals that in virtually every such case arbitrators have recognized that standing alone, and without more, conduct, such as a prolonged absence, is ambivalent and ambiguous in its purpose and have, accordingly, refused to draw the inference that by such conduct the employee intended to quit her employment. .--. -7- By way of contrast, in the second category of cases, in which the employee has expressed some intention to sever his or her employment, arbitrators have been much more inclined to accept such an expression as embracing ~the true intention of~the employee and have come to the conclusion that he or she did in fact intend to resign his or her employment. In these circumstances, and assuming that the expression by the employee does not simply reflect the employee’s anger or frustration.... or an attempt to induce the employer to concede certain demands.... the usual issue between the parties is whether there is any confirmatory conduct on the part of the employee which satisfies the “objective” element of the dual standard noted above and which manifests a continuing subjective purpose of quitting her employ. The Board’s task is to satisfy itself that both the subjective and objective elements have been satisfied in order to conclude that the grievor voluntarily intended to sever the employment relationship. In this case, Ms. Mawani expressed her intention to resign both verbally and in writing. On the evidence, we are satisfied that there was no physical reason to prevent the grievor from tendering a voluntary resignation. We can well understand that a recent event such as lost custody would result in mental distress. However, in the absence of any medical evidence to indicate the degree of stress and her mental state at the time of resignation, we must conclude that the evidence falls far short of establishing lack of subjective capacity to .form the intent to resign. We accept the evidence of Mr. 3urgen that at the time the grievor submitted her resignation she appeared “happy” with her decision to begin a new life and was rational in responding to questions. We would agree with the Employer’s submission that in these particular circumstances, if the grievor lacked the subjective capacity to resign, it was incumbent upon her to adduce medical evidence in that regard. - 8 - I It should be said that we have concerns as to the reliability of the grievor’s testimony. Her evidence differs in a number of significant respects frc!m that of Mr. 3urgen and is in substantial conflict with the testimony of Mrs. Roe. Simila::ly, the grievor’s evidence was not always consistent. For example on the’ first da;/ of hearing, in cross-examination, the question was asked of the grievor: “I suggest that you told Mr. 3urgen that you would leave Canada permanently” . The grievor replied: “I said that yes, I am not a liar”. However on the second hearing day, in cross-examination on reply evidence, the grievor was asked a similar although not identical question and replied: “No, my intention wasnever to leave permanently”. In this particular case, there is a wealth of confirmatory conduct, consistent with the intention to resign which constitutes the “objective element of the dual standard”. The confirmatory conduct took place over a lengthy period of time. Ms. Mawani left for Tanzania some five weeks after tendering her resignation. Some seven to ten days after submitting the written resignation, she telephoned her supervisor to enlist his support in expediting the payments to which she was entitled. Similarly, the grievor exchanged correspondence with the insurance carrier at which time she advised of her resignation and the fact that she ivould be taking up residence in East Africa. In sum, that conduct Is not inconsistent with the expressed intent. The more interesting argument is the Union’s contention that the Employer failed to provide sufficient information to correct the grievor’s mistaken assumption that she had to resign. This is not a case where there is any allegation of fraud or misrepresentation on the part of the Employer. Ms. Mawani I , - - 9 - testified that she did not ask for advice from either Mr. 3urgen or Mrs. Roe. Mr. 3urgen’s evidence was that he did not have sufficient knowledge to give authoritative benefits advice and referred her to Mrs. Roe for that specific purpose. However, Mr. 3urgen did testify that in his experience over the years Ms. Mawani was well informed as to her rights under the Collective Agreement. It would appear to us that Ms. Mawani was determined to resign and it is doubtful that she would have withdrawn the resignation under any circumstance. We seriously question’whether the grievor acted under any mistaken assumption. Despite the grievor’s evidence to the contrary, we accept Mrs. Roe’s evidence that she told the grievor that she was making a big mistake and that she explained the various options available. We find that the grievor was counselled in a general manner by Mr. 3urgen and counselled by Mrs. Roe in some detail as to the specific entitlements. The grievor testified that her initial meeting with Mrs. Roe was “very brief”. The evidence of both Mrs. Roe and Mr. 3urgen was to the contrary. The exit interview form makes it clear that Ms. Mawani was resigning for health reasons. Whether or not additional reasons were added at some later date is quite immaterial. While it makes good sense from a labour relations standpoint to counsel an employee who wishes to resign, the Employer is under no specific obligation to do so. It has often been said that the right to resign or quit is peculiar to the employee and is the correlative to the Employer’s right to dismissal. However, a resignation cannot be obtained by an act of duress,.coercion, misrepresentation or fraud on the part of the Employer. There was no such allegation and no such evidence in this case. In any event, we find as a fact that the grievor was counselled by the Employer. _. “ - 10 - I On all the evidence, the Panel 1s satisfied that the grievor submitted a I voluntary re:jignation In February 1987. It may well be that Ms. Mawani acted on ! impulse In returning to Tanzania. Obviously, the grievor changed her mind, retbrned to Canada and wanted her job back. Although we sympathize with the grlkvor's plight, there is no basis for an award setting aside a valid res~gnatlon. In the result, this grievance must be dismissed. ! DATE0 at Brantford, Ontario, this 7th day of December, A.D., 1990. I i -.i-- - (_ , .I . . . . . . . . . . . . . . . . . 2 . . . . . . . . . . :. -.- &A-- 1_ R. L. VERITY, Q.C. - VICE-CHAIRPERSON 1 . . . . . . . . . . . . . . 1. itiOMSON - MEMBER . . . . . . . . . . . . . . . . . 4. WAPITT - MEMBER I I