HomeMy WebLinkAboutRozario 17-03-31
IN THE MATTER OF AN ARBITRATION
BETWEEN:
Reena
(“the Employer”)
and
Ontario Public Service Employees Union, Local 554
(“the Union”)
Grievance of Patricia Rozario
(OPSEU File # 2016-0554-0002)
ARBITRATOR: Mary Lou Tims
APPEARANCES:
FOR THE EMPLOYER: Dirk Van de Kamer – Counsel
FOR THE UNION: Archana Mary Mathew – Grievance Officer
Hearing held on February 15, 2017 and by teleconference on February 21, 2017
AWARD
1. Ms. Patricia Rozario filed a grievance dated May 11, 2016 stating as follows:
I am grieving that management is in violation of article 4 in the CBA re
management failing to follow a progressive discipline process. Termination
occurred at a first infraction after 9 years of employment with no discipline noted
on file.
2. The parties agree that the issue before me at this time is whether or not a resignation
tendered by the grievor on May 5, 2016 was valid. There were no objections regarding
the arbitrability of that issue or my jurisdiction to decide it.
THE EVIDENCE
3. I heard from two witnesses in these proceedings. The grievor gave evidence and Mr.
Simon Sodhi, Resource Supervisor, testified for the Employer.
4. Reena, the Employer, operates a number of homes in Toronto which provide
assistance to persons with developmental delays. As of May 2016, the grievor had been
employed by Reena for nine years, and held a full-time position as an Awake Overnight
Support Worker.
5. The grievor worked the overnight shift on April 22-23, 2016, with an agency staff
member referred to in these proceedings only as Peter. By e-mail dated April 23, she
reported the following to Mr. Sodhi:
This morning agency staff Peter was very belligerent with me, literally screaming
at me, came down the stairs, inches from my face, his spit coming on my face.
All because I heard him verbally giving respite kid a hard time, so I told him to
stop. That was not nice. I cannot work with this person again. For my own health
and safety (sic)
6. Mr. Sodhi testified that at least “in terms of notes,” an investigation was started on
April 25. There is no dispute that he asked the grievor for a written statement that day
and that she provided him with a two page description of her interactions with Peter on
April 23.
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7. Mr. Sodhi was cross-examined regarding handwritten notes he made. While these
were dated April 25, he testified that they were “post-dated” and that he could only say
that they were written no later than April 26. Mr. Sodhi‟s notes reference conversations
with Ms. Wunmi Olaniyan, identified in the documentary evidence as “Manager,
Operations and Admin, Behaviourprise Consulting Inc..” He recorded that he “called
Wunmi to inform her that I would be following up on an incident that occurred.” He
noted as well that Ms. Olaniyan advised that Peter reported that the grievor went to sleep
at work, and his request that she “clarify w Peter what „sleeping‟ was.” (sic).
8. Various e-mailed communications dated April 25 and 26, 2016 were admitted in
evidence on agreement of the parties. These included an e-mail from Ms. Olaniyan to Mr.
Sodhi dated April 25, forwarding an April 23 e-mail from Peter regarding an incident
that day involving the grievor.
9. Mr. Sodhi testified that by April 26, he was trying to “clarify the sleep issue” relating
to the grievor, and he stated as follows in an April 26, 2016 e-mail to Ms. Olaniyan:
. . . I would like you to ask Peter for some clarification in regards to his statement.
What I need to know is how does he know that the other staff was sleeping and
also has this happened in the past and if can recall specific dates. (sic)
10. A Supervisory meeting between Mr. Sodhi and the grievor was scheduled for April
28. The grievor gave evidence that she attended that meeting with the expectation that it
would be a “regular” monthly Supervisory meeting.” In cross-examination, however, Mr.
Sodhi testified that he gave the grievor advance notice that this would not be a regular
meeting. The grievor had no Union representation at that meeting and was not advised by
the Employer that she should seek Union representation.
11. It was common ground between the grievor and Mr. Sodhi that their April 28 meeting
was in fact not a “regular” Supervisory meeting. Mr. Sodhi‟s evidence was that he met
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with the grievor for approximately an hour to go over her statement, and that his “focus”
was her complaint regarding Peter. The grievor also recalled that the meeting was “all
about the incident from start to finish,” and that there was no other discussion.
12. Mr. Sodhi gave evidence, however, that he conferred with Human Resources prior to
his April 28 meeting with the grievor, and that Human Resources provided him with
suggested questions both with respect to the April 23 incident and an allegation that the
grievor slept at work. He testified that when he asked the grievor for “the events of the
day complained of,” she volunteered that she sometimes slept at work and that he
therefore did not pose questions regarding alleged sleeping on the job.
13. Mr. Sodhi recorded during his April 28 meeting with the grievor that she stated more
than once that she slept at work, and he attested to the accuracy of those notes when
testifying. The grievor, however, testified in these proceedings that she told Mr. Sodhi
that she did not sleep at work and that it would not be possible to do so even if one tried
because of the activity level in the home. Her evidence in these proceedings was that she
did not sleep at work, but put a sheet that she brought from home on the sofa for
“hygienic purposes,” lay down, closed her eyes and took brief breaks so as to “recharge.”
14. Although the grievor initialled Mr. Sodhi‟s notes, her evidence was that she did not
have her glasses with her at that time and was unable to read them.
15. Mr. Sodhi agreed in cross-examination that the grievor was not advised as of their
April 28 meeting that he was working with Human Resources and investigating
allegations that she slept while on duty. He also testified, however, that the grievor knew
by April 28 that “sleeping on the job is not okay” and that “we need to look into it.”
16. The grievor gave evidence that Mr. Sodhi told her at the April 28 meeting that Peter
had reported that she slept at work, and she acknowledged that she knew at that time that
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she was “in trouble” and that she was “distraught.” She further testified, however, that
she did not know that she was under investigation and that there was “no indication” that
her employment would be terminated.
17. The grievor and Mr. Sodhi both attended a Staff meeting after the Supervisory
meeting was over. Both recalled that Mr. Sodhi then asked her to return to his office. Mr.
Sodhi made the following notes which he testified accurately reflected what was said at
that time:
1. I informed Patricia that her position is an Awake ON position, and under no
circumstances she cannot sleep. (sic)
2. She said „Then this job is not for me, I will have to walk away.‟
3. I will hand in my resignation or switch to D/T or something. (sic)
18. The grievor acknowledged that she initialled and signed Mr. Sodhi‟s note at that time,
but testified that she did not have her glasses with her and could not read it. She recalled
that Mr. Sodhi told her that she should not be sleeping and that he suggested to her that
she “knew this was an Overnight Awake position.” Her evidence was that she told Mr.
Sodhi that she did not sleep at work and that it would not be possible to do so.
19. The grievor accepted the accuracy of the statements set out in the first two points
recorded by Mr. Sodhi. She agreed as well that she said “something to the effect of „I
will hand in my resignation.‟” Her evidence, however, was that she did not “mean it” and
thought that Human Resources would accommodate her with work on the day shift. Her
evidence was that she did not think that her employment would come to an end and that
“not once” did she consider resigning. She testified that she did not sleep at work, but
only mentioned resignation because Mr. Sodhi told her that “even if you close your eyes
for five minutes, you neglect clients.” The grievor‟s evidence was that the “overnight job
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was not easy,” and that she “did it for as long as” she could, but hoped that management
would switch her to days.
20. Mr. Sodhi called the grievor on May 4, asked her to meet with Human Resources that
afternoon, and advised her to seek Union representation. Her evidence was that she did
not previously contact the Union as she did not think there was a need to do so.
21. The grievor and the Union‟s Chief Steward, Mr. Allan Anteby, met with Mr. Sodhi
and with Ms. Lana DeMeo, Manager, Human Resources and Payroll, the afternoon of
May 4. There was little evidence as to what the discussion entailed at that time. Mr.
Sodhi testified that he did not take notes at that meeting, but thought it likely that
somebody did so. None were before me in evidence. The grievor recalled that Ms.
DeMeo referred to the “April 23 incident,” “violence in the workplace,” an allegation that
“agency staff said I was sleeping,” and “serious allegations.” The grievor testified that
the meeting ended with Ms. DeMeo stating that they would meet again when the
Employer “made a decision.” Her evidence was that Human Resources did not inform
her that it was considering discipline and termination, and that she did not think that she
was being investigated or was subject to discharge. Mr. Sodhi also gave evidence that
termination was not discussed at the May 4 meeting.
22. A further meeting with Human Resources was arranged to take place on May 5 at a
time not identified in the evidence before me. The grievor testified that as she drove to
Reena‟s office on May 5, she knew that she was “for sure . . . in trouble.” Her evidence,
however, was that she did not understand prior to May 5 that she would lose her job.
Although she testified that the Employer did not indicate on May 4 that it was
considering discipline, she acknowledged in cross-examination that by the time she was
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driving to the Employer‟s office on May 5 she expected a verbal or written warning “for
conflict with Agency staff and the allegation of sleeping.”
23. The grievor testified that she met “downstairs” with Mr. Anteby and with the Union‟s
Local President, Mr. Daniel Saper-Silver upon her arrival at Reena‟s offices on May 5.
Her evidence was that Mr. Anteby initially told her that “this would likely result in
termination,” and that Mr. Saper-Silver was “on the same page.” She described that she
was in “shock and disbelief.” Her evidence was that she said that she had done nothing
wrong, was not resigning, did not want to resign and needed her job. She recalled that
both Union representatives told her that she “would never get a job anywhere else” or at
least that it would be “difficult for her to get a job in this field,” and that it would be in
her best interests to resign before the Employer gave her a letter of discharge.
24. The grievor recalled that after initially meeting for approximately thirty minutes, Mr.
Saper-Silver asked Mr. Anteby to “go upstairs and see what was going on.” She testified
that she and Mr. Saper-Silver continued discussing her case during the approximate ten
minutes that Mr. Anteby was “upstairs,” and that Mr. Anteby then returned and advised
that “it was a termination.”
25. Mr. Sodhi also recalled waiting “upstairs” with Ms. DeMeo, and possibly with his
Manager, Ms. Anne Szabo, when Mr. Anteby “came up.” He testified that Mr. Anteby
“asked us for time” as “they wanted to talk to the grievor.” Mr. Sodhi‟s recollection was
that “there was a thing around she might resign.” His evidence was that Mr. Anteby was
told to “take the time you need.”
26. The grievor testified that upon Mr. Anteby‟s return downstairs, he handed her a piece
of paper and a pen to write a resignation letter, and she began by writing, “I, Patricia
Rozario….” She gave evidence that she was too upset to continue composing the letter.
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The grievor recalled that she told her Union representatives “I don‟t know what to write,”
and that Mr. Saper-Silver then asked Mr. Anteby to complete the letter. He did so, she
testified, by continuing on the same single piece of paper upon which she had already
written, “I, Patricia Rozario.” The grievor‟s evidence was that she then signed the letter
which reads as follows:
To whom this may concern:
Please let this letter serve as my official resignation dated today May 05, 2016.
I am requesting that as part of this process my file will be sealed and that I receive
a letter of employment and a record of employment indicating resignation.
27. Although the grievor was cross-examined about the fact that the resignation letter
does not contain the words “I, Patricia Rozario,” she could offer no explanation as to
what happened to the letter that she testified that she started.
28. The grievor‟s further evidence was that Mr. Anteby asked her to remove her keys and
employee identification to be returned to the Employer, and that he addressed with her as
well the need to “remove papers” from the house in which she had worked as she would
not be permitted back in the house once her employment ended.
29. While the grievor acknowledged signing the letter drafted by Mr. Anteby, she
testified that she did not know that she had any choice and did not understand her options
or the consequences. She described that she was “very upset” and “emotionally
distraught.” Her evidence was that she did not want to resign, and that she “might” have
told her Union representatives that she was “not happy” to resign. She agreed in cross-
examination, however, that she knew at the time that she did not have to resign, and that
she could have “fought it.” She further accepted in cross-examination that the option of
arbitration was offered by and discussed with the Union, and that she understood that it
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was a choice open to her. She recalled that her Union representatives discussed with her
that arbitration would be a “long process” and expressed a view that the “results would
likely be the same.” While she testified initially that she told the Union that she “wanted
to go to arbitration,” her later evidence was that this was “obviously” not so, and that she
“could have” and “should have” done so. She acknowledged that if she had told the
Union she wished to proceed to arbitration, “we would have taken that route.” The
grievor testified that it “happened so quickly” and “in the heat of the moment” and that
she did not have time to “think about it.” She described that she was at the time “under
tremendous stress and pressure.” In re-examination, she stated that even though
arbitration was offered to her by the Union, she did not think she had “an option” open to
her. She acknowledged that she did not ask for more time, and explained that she did not
know that she could have done so. She estimated that she spent approximately ten to
fifteen minutes with the Union in the “drafting process” when Mr. Anteby returned
downstairs after speaking with the Employer.
30. The grievor‟s evidence was that after 45 minutes to an hour in total with her Union
representatives on May 5, she and Mr. Anteby went upstairs to meet with the Employer.
31. The grievor acknowledged that she did not cry while meeting with her Union
representatives or with the Employer.
32. The grievor and Mr. Anteby met with Mr. Sodhi and Ms. DeMeo. Mr. Sodhi testified
that the grievor “presented as matter of fact” and that she gave the Employer the signed
resignation letter. The grievor testified that Mr. Anteby handed Ms. DeMeo the
resignation letter he had drafted and she had signed, along with her keys and employee
identification. She gave evidence that she was upset, but “resigned” herself to the fact
that there was “nothing more I could do.” She did not ask for more time. Mr. Sodhi then
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gave her a typed letter accepting her resignation effective May 5. His evidence was that
the Employer prepared this letter after Mr. Anteby advised that day that resignation was a
possibility. He testified that the Employer never “talked to the grievor” about
termination. He acknowledged in cross-examination that he did not notice that the
resignation letter submitted over the grievor‟s signature was in Mr. Anteby‟s writing, and
that the Employer did not ask the grievor if she needed more time or if she had questions
before accepting her resignation.
33. Mr. Sodhi testified that he offered to mail to the grievor any personal belongings at
the house where she worked, but that the grievor said that she needed to attend at the
house to get her bed sheet. The grievor denied saying that, and could not recall Mr.
Sodhi asking if he could mail her belongings to her. Her evidence was that Ms. DeMeo
asked if she “had anything at #241,” and that she answered affirmatively and asked if she
could go and pick “things” up as she was “already there.”
34. Mr. Sodhi and the grievor both recalled that upon the completion of the May 5
meeting, they each drove separately back to the house where the grievor had worked.
Mr. Sodhi met the grievor there and he testified that she continued to present as “matter
of fact.” The grievor‟s evidence was that she picked up papers from a file, and that there
was no bed sheet for her to retrieve. Mr. Sodhi recalled otherwise that the grievor looked
for a bed sheet and indicated that she must have already taken it home. The grievor
denied so commenting, explaining that she kept her sheet in her car.
35. The grievor testified that on her way home, the “full realization hit” her that she was
54 years old and would never get full-time work again. She discussed what happened
with her family, and “nobody was happy” that she did not have a job. The grievor
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testified that she liked her job, and as one of two parents supporting three children,
needed her job and “never once intended to resign.”
36. The grievor contacted the Union the morning of May 6, 2016. She testified that she
told Mr. Anteby that she should not have listened to him and wanted her job back, but
that he said “it is done.” The grievor gave further evidence that she responded to Mr.
Anteby with words to the effect, “not if I get myself a lawyer,” although she agreed in
cross-examination that she did not in fact intend to do so.
37. An e-mail dated May 6, 2016 at 10:21 a.m. from Mr. Anteby to Ms. DeMeo reads as
follows:
We were contacted by Patricia this morning stating that she felt pressured to
resign and did not get time to think about it. Should (sic) would like to reverse it
after consulting with a lawyer and be terminated. Let me know if that‟s possible.
38. The grievor testified that Mr. Anteby reported back to her that the Employer was not
willing to “take her back.”
39. The grievor followed up with an e-mail to Ms. DeMeo on May 6 at 2:59 p.m. stating:
Please be advised that I am retracting my resignation date May 5, 2016. (sic)
I was not in a clear frame of mind in our meeting and I strongly feel that I was
encouraged under duress to tender my resignation.
Please let me know when I can start my next shift.
40. Ms. DeMeo responded as follows to the grievor and the Union later on May 6:
It is very unfortunate that you feel that you have resigned under duress, however
that is something that you need to address with your union representatives as this
conversation has occurred with them not with the employer. Having said that,
you have already mentioned to Simon a week ago that you are considering
resignation as you were not willing to continue working in your position.
It is of a concern to me that earlier in the day you communicated to both of the
union representatives and requested not to be reinstated but to reverse your
resignation to termination which is contradictory to your statement below. As
such we are not in the position to reverse your resignation.
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41. The next morning, OPSEU Staff Representative Ms. Ann Ledwidge e-mailed Ms.
DeMeo and others stating as follows:
Whatever Patricia may or may not have mentioned to Simon is out of scope with
regard to the issue of Patricia retracting her resignation. Patricia was under stress
and there was also some mitigating circumstances around her resignation. It is a
concern to me that the employer is taking such a hard lined approach to this
situation. Please let me know by Tuesday May 10, 2016 if you are willing to
reconsider your decision and return Patricia to her normal hours of work. If I do
not hear from you by the end of the day Tuesday the Union will be submitting a
grievance on Patricia‟s behalf.
42. The grievance was filed on May 11, 2016.
THE ARGUMENT
43. The Union asks me to find that the grievor‟s May 5, 2016 resignation was not valid. It
submits that arbitrators require evidence of voluntary subjective intent and objective post-
resignation conduct consistent with the intent to quit before determining that a resignation
is effective. The Union suggests that it is clear from the evidence before me that the
grievor had no settled intent to resign and engaged in no objective conduct consistent
with the intent to leave her employment.
44. The Union asks me to consider the grievor‟s actions in the context of the Employer‟s
conduct over the “full spectrum of time.” Counsel suggests that the Employer failed to
convey to the grievor in a timely manner the fact that it was investigating allegations that
she slept on the job, and that termination of employment was a possibility. The Union
notes the evidence that the grievor raised concerns regarding her health and safety on
April 23 after an incident involving Peter, and submits that she was in a vulnerable state
at the time.
45. Despite the fact that the Employer was, in the Union‟s submission, “busying itself”
with building a “nesting” case against the grievor, Mr. Sodhi met with her on April 28
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without Union representation and without putting her on notice that their meeting was
anything but a regular monthly Supervisory meeting. The evidence is clear, the Union
submits, that although the grievor did not understand that she was in trouble and under
investigation, she was “drawn into this” to the point that she signed notes that she was not
able to read.
46. The Union acknowledges that the grievor referenced “resignation” in her April 28
discussion with Mr. Sodhi, but suggests that such comment must be construed in light of
the interest she expressed at the same time in working the day shift. Clearly, in the
Union‟s view, the grievor‟s April 28 comments reflect no intent to resign.
47. The Union argues that it was not until May 4 that the Employer first told the grievor
that it was investigating an allegation that she slept on the job, and suggested that she
seek Union representation. Notably, however, even then the Employer failed to put the
grievor on notice that her employment was in jeopardy.
48. The Union acknowledges that the grievor sought and obtained Union representation
as of May 4, and that it was the Union that put her on notice on May 5 that she was facing
discharge. In the Union‟s submission, however, a lack of transparency in the Employer‟s
process had kept the grievor in the dark up to that point in time. As a result, it was only
on May 5 that she first appreciated the circumstances in which she found herself, and in
those “pressure filled and overwhelming” circumstances, was forced to make a hasty
decision in the space of no more than one hour to tender the letter of resignation penned
by the Union.
49. The Union argues that because of the Employer‟s conduct, the grievor was distraught
and in a state of shock at the time. Accordingly, although the Union addressed options
with her, she did not understand and was left with the impression that she had no choice
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but to resign. The Union suggests as well that the grievor had already demonstrated a
“lack of sophistication” in signing supervisory notes that she could not read on April 28
and in failing to appreciate the need to seek the assistance of her Union at the time. In all
of these circumstances, the Union submits that it is clear that the grievor did not
understand the implications of signing the resignation at the time.
50. The Union emphasizes the grievor‟s evidence that she was too distraught to write her
own resignation letter, and suggests that this speaks to her state of mind and capacity to
understand at the time in question. In the Union‟s submission, there can be no suggestion
in the circumstances here that the letter of resignation submitted to the Employer reflects
forethought or the weighing of options by the grievor. Rather, Union Counsel suggests,
having in effect been “ambushed” by the Employer, the resignation letter is akin to a
“heat of the moment” outburst.
51. This is particularly so, in the Union‟s submission, given the Employer‟s failure to
make any inquiries on May 5 to ensure that the resignation offered by the grievor was in
fact effective. Rather, the Union suggests, the Employer “pounced” on the grievor‟s
emotional response and accepted her resignation with “indecent haste” with a letter it had
prepared in advance.
52. The Union acknowledges the evidence that the grievor did not cry while meeting with
the Union and the Employer on May 5. Reliance on “gendered stereotypes” is, in the
Union‟s submission however, no basis for questioning the grievor‟s assertion that she was
distraught and in a state of shock on May 5 when she signed and submitted to the
Employer a letter of resignation.
53. What is most critical here, in the Union‟s submission, is what followed. Counsel
suggests that after a “quick succession of events” including the drafting, signing and
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submission of the resignation letter, the immediate acceptance of the resignation, the
handing in of keys and identification and the retrieval of personal effects from the house,
the grievor took no post-resignation steps consistent with an intent to leave her
employment. Rather, in the Union‟s submission, the evidence establishes only the
grievor‟s immediate and repeated efforts to retract her resignation after the first
opportunity for reflection.
54. The Union argues that in all of the circumstances, the grievor ought to have been
permitted a reasonable opportunity to consider her decision, after learning on May 5 that
the Employer intended to discharge her. While the Union acknowledges that the grievor
was afforded its representation, Counsel suggests that this is, in the circumstances here,
somewhat of a “red herring.” The Union emphasizes that arbitrators require evidence of
subjective intent to resign along with evidence of objective conduct confirming such
intent before a resignation is found to be valid. The mere fact that the grievor was
represented by her Union here does not in and of itself “ground” the two elements
required. The Union asks me to conclude on the evidence before me that there was no
subjective intent to resign here and no objective post-resignation conduct consistent with
such intent, and that there was thus no valid resignation.
55. In support of its position, the Union relies upon the following authorities:
Saskatchewan Association of Health Organizations and Health Sciences Association of
Saskatchewan (2011), 207 L.A.C. (4th) 134 (Hood); City of Ottawa and CUPE, Loc. 503,
2008 CarswellOnt 9006 (Dissanayake); Toronto District School Board and CUPE, Loc.
4400 (2003), 117 L.A.C. (4th) 289 (Shime); and Lewisfoods Inc. and UFCW, Loc 175
(2002), 108 L.A.C. (4th) 366 (Stephens).
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56. The Employer‟s position is that the grievor‟s May 5, 2016 resignation was valid. It
submits that the Union bears the onus of proving that it was not freely and voluntarily
given, and that it failed to satisfy such onus.
57. Employer Counsel asks me to find that as of April 28, 2016, the allegation of sleeping
on the job had been raised with the grievor and she knew she was “in trouble.” While the
Union makes much of the fact that she was not advised to bring a Union representative to
that meeting, the Employer notes that the Union refers to no contractual provision
allegedly breached. Counsel argues that there was nothing improper in how the Employer
investigated matters and no contractual breach alleged by the Union in that regard, and
the fact that the sleeping on the job allegation arose around the same time as the April 23
incident with Peter is of “no moment.”
58. The Employer acknowledges the grievor‟s evidence that she was distraught at the
time that she chose to resign. Counsel notes the evidence before me that the grievor did
not appear emotional at the relevant time. Further, he suggests that I must consider the
grievor‟s claim that she was too distraught to understand her options in light of what he
characterized as “an inclination not to tell the truth” in these proceedings. Counsel
submits that Mr. Sodhi‟s April 28 notes, signed by the grievor, are clear that the grievor
advised him more than once that day that she slept while at work, and yet she denied
doing so in these proceedings. If in fact she did not sleep at work, Counsel questions why
she conveyed to Mr. Sodhi on April 28 that “maybe the job was not for her.” Further,
insofar as the grievor acknowledged in these proceedings that she expected to receive a
warning, Counsel suggests that this makes no sense given her denial of sleeping on the
job before me. Counsel argues as well that the grievor was less than truthful in
suggesting to Mr. Anteby on May 6 that she had sought or would seek legal advice, and
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in testifying before me that she did not return to the house where she worked on May 5 to
look for her bed sheet.
59. It is also important to bear in mind, Counsel suggests, that the grievor told Mr. Sodhi
on April 28 that she might resign or pursue other options once made aware of the
allegation that she slept at work. The Employer argues that the grievor‟s decision to
resign on May 5 must be considered mindful that this had been within her contemplation
for several days.
60. In the Employer‟s submission, by May 4, it was “crystal clear” to the grievor that
there was a “real problem,” and that her employment was in jeopardy.
61. Of fundamental importance in the Employer‟s submission is the fact that the grievor
had the opportunity to confer with her Union before choosing to tender her resignation.
Counsel argues that the arbitral jurisprudence is clear that there is “something different”
when the Union advises its member before a decision to resign is made. While the Union
suggests that the grievor did not understand her options due to an unsophisticated nature
or upset state of mind, Counsel suggests that the evidence simply does not substantiate
such claim. Key to the Union‟s position, in the Employer‟s submission, is its assertion
that the grievor was on May 5 so distraught that she was unable to draft a letter of
resignation beyond writing the words, “I, Patricia Rozario.” The Employer emphasizes
that the grievor‟s version of events “makes no sense” and is incompatible with the
documentary evidence before me here. Specifically, the letter of resignation signed by the
grievor and submitted to the Employer on May 5 does not include the words “I, Patricia
Rozario” and is at odds with the grievor‟s assertion that it fell to Mr. Anteby to complete
on that same page the letter she was allegedly unable to finish. The Employer notes that
the Union chose not to call as witnesses either of its representatives who might have shed
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light on what took place at the time in question. In all of these circumstances, Counsel
argues that I cannot accept the grievor‟s evidence that she was too distraught to draft a
resignation letter on May 5.
62. The Employer asks me to carefully consider the evidence of the grievor‟s interaction
with the Union on May 5. Counsel suggests that a central and determining feature of this
case and one that distinguishes it from the decision in City of Ottawa, supra, is the
grievor‟s testimony that she resigned with the clear understanding that arbitration was an
option open to her and that her Union would have taken her case to arbitration had that
been her choice. In the Employer‟s submission, the Union‟s suggestion that the grievor is
unsophisticated and was unable to understand her options, is simply not in accord with
her own evidence.
63. Further, the Employer argues, the letter of resignation submitted by the grievor
reflects a measured and thoughtful approach. It sought a letter of employment, a sealed
file and a record of employment indicating resignation as the quid pro quo for
resignation. Counsel suggests this was not a “quit in a huff” case but a calculated
decision made by the grievor after consulting with her bargaining agent.
64. The Employer further emphasizes that she handed in keys and identification,
addressed arrangements for picking up belongings from her former workplace, and then
attended at the house to do so.
65. Employer Counsel acknowledges that a decision to resign may be stressful, but
emphasizes that this in and of itself does not reflect an inability to form the intent to do
so. Here, the Employer notes, the grievor had the chance to confer with her Union before
choosing to resign, and understood the options open to her. Her decision to resign was
not the product of an “irrational outburst,” but was something the grievor “saw coming”
18
for a week. There was no pressure exerted by the Employer, and no basis upon which I
can find that the grievor was unable to formulate the intent to resign. The Employer
accepted the grievor‟s resignation on May 5, and was entitled to do so. Counsel suggests
that in all of the circumstances before me, the Employer had no duty to question what
appeared to be a valid resignation. Although the grievor changed her mind by May 6, the
law does not require the Employer to permit the retraction of a valid resignation already
accepted.
66. The Employer relies upon the following authorities in support of its position:
Brookfield Foods Ltd. and Canadian Brotherhood of Railway, Transport & General
Workers, Loc. 503 (1987), 31 L.A.C. (3d) 292 (Darby); Motorways Direct and
Teamsters, Loc. 880 (1988), 35 L.A.C. (3d) 11 (M. Picher); Meadow Park Nursing Home
and Service Employees Union, Loc. 210 (1993), 36 L.A.C. (4th) 283 (Brandt); Wellesley
Central Hospital and SEIU, Loc. 204 (1996), 61 L.A.C. (4th) 433 (Gray); Dubord &
Rainville Inc. and Metallurgistes Unis D’Amerique, Loc. 7625 (1996), 53 L.A.C. (4th)
378 (Frumkin); Canada Packers Inc. and UFCW, Loc. 114-P (1984), 17 L.A.C. (3d) 1
(Rayner) and Community Lifecare Inc. and UFCW, Loc. 175 (2008), 174 L.A.C. (4th) 64
(Bendel).
67. In Reply, the Union considered the case law relied upon by the Employer. Counsel
suggests that those authorities highlight the importance of an employee‟s post-resignation
actions, the need for an employer to engage in due process, the need to consider whether
a resignation letter reflects thought over time and the weighing of options, as well as any
unsubstantiated delay in seeking to retract a resignation. What the cases do not say, in the
Union‟s submission, is that access to Union representation in and of itself renders binding
19
a resignation that was clearly not effective when considered in accordance with the two
step inquiry referenced in the jurisprudence.
THE DECISION
68. The grievor tendered a letter of resignation to the Employer on May 5, 2016, and such
resignation was accepted. The Union claims that the resignation was not valid, and it
bears the onus of so proving.
69. The validity of a resignation is to be determined on the basis of a dual element test
articulated as follows in Anchor Cap & Closure Corp. of Canada. Ltd. and U.E.W., Loc.
512 (1949), 1 L.A.C. 222:
The act of quitting a job has in it a subjective as well as an objective element. An
employee who wishes to leave the employ of the Company must first resolve to
do so and he must then do something to carry his resolution into effect. That
something may consist of notice, as specifically provided for in the Collective
Agreement, or it may consist of conduct, such as taking another job, inconsistent
with his remaining in the employ of the Company. (quoted in Brookfield Foods,
supra, p. 296)
70. This dual element test has been accepted and applied in the arbitral jurisprudence. In
Meadow Park, supra, Arbitrator Brandt described it as follows:
The law in this area is quite clear. In order that an employee be found to have
effectively resigned her employment it must be demonstrated not only that she
had a “subjective intention” to resign but also that this intention be confirmed by
some “objective conduct.” The concern that underlies this doctrine is that
resignations frequently are offered in the heat of the moment or at times of some
personal stress and that they may not express the employee‟s real wishes.
Consequently, arbitrators have looked at conduct over and above the expression
of a desire to resign employment in order to satisfy themselves that the intention
to resign is one which is continuing and real. (pp. 285-286)
71. The validity of the grievor‟s resignation is, of course, to be determined on the basis of
the facts before me, and I agree with the Union that I must consider the full chronology of
relevant events. Such chronology begins with the grievor‟s April 23, 2016 report to the
Employer regarding an alleged incident involving agency staff member, Peter. By April
20
26, Mr. Sodhi had also become aware of an allegation that the grievor slept on the job and
sought to “clarify the sleep issue.”
72. Mr. Sodhi and the grievor met twice on April 28. While the Union was critical that
the Employer failed to advise the grievor to seek Union representation at that time, it did
not dispute the Employer‟s assertion that there was no contractual requirement that it do
so in the circumstances.
73. Mr. Sodhi testified that he intended on April 28 to investigate both the alleged April
23 incident and the allegation that the grievor slept at work. While he and the grievor
differ as to what she in fact said to him that day, Mr. Sodhi accepted in cross-examination
that he did not advise the grievor on April 28 that he was investigating allegations that
she slept while on duty, although he suggested that the grievor knew that “we need to
look into it.”
74. The grievor acknowledged that Mr. Sodhi told her on April 28 that she should not be
sleeping on the job. Further, she accepted that she responded to Mr. Sodhi in part with
words to the effect that “this job is not for me” and referred to possible resignation. She
also raised at that time, however, the possibility of “switching” to day shift and testified
that she hoped that the Employer might transfer her to the day shift.
75. The grievor acknowledged that Mr. Sodhi advised her on April 28 that Peter had
reported that she slept on the job. While she gave evidence that she did not appreciate at
that time that she was “under investigation” and potentially facing discharge, she knew
that she was “in trouble,” and she was “distraught.”
76. The grievor was contacted by Mr. Sodhi on May 4, asked to meet with Human
Resources that afternoon, and invited to bring a Union representative. The grievor met
with the Employer that afternoon along with Mr. Anteby. There was little evidence as to
21
what was discussed at the May 4 meeting. The grievor recalled, however, that Ms.
DeMeo spoke of “serious allegations,” an April 23 incident, and alleged sleeping at work.
The grievor understood at that time that another meeting would be scheduled once the
Employer made a “decision.”
77. While Employer Counsel argued that it was “crystal clear” to the grievor as of this
time that her employment was in jeopardy and that this was in fact “something she saw
coming” for a week, the evidence before me suggests otherwise. Clearly the grievor
appreciated as of April 28 that Peter had reported that she slept at work and that she was
“in trouble.” By the time that she drove to the May 5 meetings, she expected discipline,
albeit at the level of a warning. Her evidence, however, was that she did not understand
until May 5 that she was to be discharged. As noted by the Union, that assertion must be
considered in the context of the grievor‟s failure to contact it before May 4 and her
willingness to sign supervisory notes in the circumstances of the April 28 meetings, both
of which are at the very least consistent with a failure to appreciate the seriousness of her
circumstances. The grievor‟s evidence that she did not understand before May 5 that
discharge was imminent must also be considered in light of Mr. Sodhi‟s testimony that he
did not believe that termination was discussed with the grievor on May 4, and that in fact
the Employer never talked to the grievor about termination. I accept that the grievor did
not understand before May 5 that she was facing discharge.
78. The grievor met with her Union representatives for approximately one hour on May
5. Unlike the facts before the arbitrator in City of Ottawa, supra, where the grievor‟s
request for additional time was denied, the grievor requested no additional time to
consider her situation. The Employer imposed no time constraints on the grievor‟s
22
consultation with her Union, Mr. Sodhi‟s undisputed evidence establishing that the
Employer told Mr. Anteby to “take the time you need” to speak to the grievor.
79. Upon meeting with her Union on May 5, the grievor was initially advised that her
circumstances “would likely result in termination.” With ten to fifteen minutes remaining
in their meeting, she was informed that discharge was a certainty.
80. The grievor‟s evidence was that she was upset, shocked, and under “tremendous
stress and pressure” at that time. The Employer submits, however, that such assertion
must be judged against what it suggests was a tendency to be less than forthright in her
testimony on a number of points. While I have considered the Employer‟s submissions in
this regard, it suffices to state at this time that whatever conclusions may or may not be
warranted with respect to the grievor‟s credibility on a number of other points, I accept
that she was in fact upset and shocked, and felt under “tremendous stress and pressure”
when she first came to appreciate on May 5 that she was to lose her employment.
81. In so finding, I acknowledge the evidence that the grievor did not cry or visibly
display emotion at the relevant time. I recognize that there is no evidence of what might
be described as an “outburst” of emotion or anger. I agree with the Union, however, that
at least in the circumstances before me, the grievor‟s stoic demeanour should not, in and
of itself, cast doubt on what I view as credible evidence that she was in fact upset and
shocked when she first learned on May 5 that she was not going to receive a disciplinary
warning, but was to be discharged.
82. I note that there is no evidence before me of threats or duress by the Employer.
Rather, the grievor‟s state of mind on May 5 must be attributed to what Arbitrator Picher
characterized in Motorways, supra, as “the pressure of external circumstances.” As the
arbitrator noted there, “life often involves making hard choices,” and “in many cases it
23
will be difficult to draw a causal link between the sheer hardship of the employee‟s
circumstances and the voluntariness of his or her decision to resign.” (p. 22)
83. While I accept the grievor‟s evidence that she was upset and shocked when she first
learned that she was to be discharged, there is an important distinction to be drawn
between being upset in response to difficult circumstances, and being emotionally
compromised and lacking what Arbitrator Picher referred to as “the capacity to formulate
an independent intention to resign.” I agree with the arbitrator‟s comments as follows:
In neither case, however, is it particularly instructive to find that the employee did
not “want” to resign. It is part of the human condition that individuals must, on
occasion, make decisions and take courses of action which they find unpleasant
and would prefer to avoid. Reluctant resignation is not involuntary resignation
merely because it represents an outcome not of the employee‟s own desiring. The
true question is whether the employee did exercise a sufficient degree of
independent judgment in the circumstances. (Motorways, supra, p. 22)
84. The Union suggests that the grievor‟s emotional state at the time in question was so
compromised that she was incapable of writing her own resignation letter. I have
considered her evidence that she got only as far as writing “I, Patricia Rozario,” before
the task of completing that letter, notably on the one same page, was relegated to Mr.
Anteby. As emphasized by the Employer, that assertion is not reflected in the
documentary evidence before me. The resignation letter signed by the grievor and
submitted to the Employer does not contain the words “I, Patricia Rozario” despite the
grievor‟s testimony that Mr. Anteby completed on the same page the letter that she had
been unable to finish because of her emotional state. In the absence of clarifying evidence
from Mr. Anteby or Mr. Saper-Silver, the grievor‟s recollections on this point cannot be
relied upon in support of the Union‟s claim that her emotional state at the time rendered
her incapable of completing her own resignation letter.
24
85. I agree with the Employer as well that it is of critical importance here that the grievor
had the benefit of Union representation before choosing to tender a letter of resignation.
The arbitral authorities are clear that “the availability of independent advice whether
through a union representative, legal counsel or otherwise” is important evidence “to be
weighed in the over-all determination of whether” an employee “had the capacity to
formulate an independent intention to resign and voluntarily did so.” (Motorways, supra,
p. 22) Indeed, Arbitrator Bendel commented in Community Lifecare, supra, that
arbitrators are “reluctant to set aside a resignation where the employee has been
represented by a union steward” (p. 69) and Arbitrator Rayner stated in Canada Packers,
supra, that it is “difficult” for employees who “acted upon the union‟s advice” to claim
that there was no subjective intent to resign. (p. 8)
86. Particularly important here is the grievor‟s evidence that she understood when
conferring with her Union on May 5 that arbitration was an option open to her, that she
was free to choose that route, and that her Union would have taken her case to arbitration
had she chosen to proceed accordingly. As noted by the Employer, that sort of evidence
was not before the arbitrator in City of Ottawa, supra, and is also distinct, I note, from
that considered in other cases relied upon in these proceedings such as Community
Lifecare, supra, where resignation was nonetheless found to be valid. While I note the
grievor‟s suggestion in re-examination that she did not understand on May 5 that options
other than resignation were open to her, her own evidence demonstrates otherwise. The
evidence of the grievor‟s communication with her Union here is similar to that considered
in Dubord, supra, where the arbitrator concluded as follows:
It follows that where an employee chooses to submit his resignation in the face of
an offer forthcoming from his employer to either resign or be discharged in the
absence of any other form of intimidation or threats and is extended at the same
25
time an opportunity to consider his options, it will no longer be open to him to
contest the resignation which will be accepted as final and binding. This will be
particularly so where the employee has been given the opportunity to consult with
his union representative upon the decision to be made. This being the case, the
tribunal does not see how the grievor‟s claim can succeed. (pp. 385-386)
87. Having considered the evidence in its entirety, and particularly that relating to the
Union‟s representation of the grievor at the relevant time, I cannot accept the Union‟s
assertion that the grievor lacked “the capacity to formulate an independent intention to
resign” or that there was, in all of the circumstances, an absence of subjective intent to
resign.
88. The Union argues as well, however, that the objective element of the applicable test is
lacking in the evidence before me. The arbitral authorities articulate the rationale
underlying the objective component of the inquiry to be undertaken in assessing the
validity of a resignation. Arbitrators recognize that resignations can, and sometimes do,
arise in what is variously described as “the heat of the moment,” or in “personally
trying,” or “highly stressful” circumstances. For this reason, they look to conduct beyond
the expression of the desire to resign to determine whether there was in fact a true
intention to voluntarily terminate employment. Arbitrator Adams addressed this as
follows in Metropolitan Toronto (Municipality) Commissioners of Police v. Police Assn.
(Metropolitan Toronto) (1978), 18 L.A.C. (2d) 7:
While this requirement of an objective act may seem overly paternalistic at first
glance, when the act of quitting is closely analyzed one begins to appreciate the
importance of this second requirement. More specifically, the act of quitting
employment because it often occurs under personally trying circumstances, is
sometimes a very difficult act to identify. To rely exclusively on emotional verbal
outbursts would be a patently artificial criteria by which to determine the
employee‟s intention and thus something more is required by the cases. This
something more goes to confirm that any expressed intention was in fact intended
and its requirement underlines the unique nature of the employment
relationship…. In requiring a subjective intention to quit coupled with a
confirmatory objective act carrying that intention out arbitrators have tried to
26
accommodate the emotional circumstances that tend inevitably to surround
contested resignations while at the same time resisting an overly technical
approach to problem solving under collective agreements. (quoted in Toronto
District School Board, supra, para 52)
89. In Motorways, supra, Arbitrator Picher also commented as follows on the objective
element of the test:
It should be noted that in dealing with the objective element, boards of arbitration
take great care to assess the whole of the grievor‟s conduct, both before, during
and after a purported resignation. Where the employee‟s actions, statements and
reactions are, over-all, inconsistent with an intention to sever his or her
employment relationship, notwithstanding a verbal outburst, or even a written
statement to the contrary, such evidence will be looked to to determine whether in
fact a true intent to terminate the employment relationship was absent. (p. 19)
90. The Employer emphasized in these proceedings that the grievor had the opportunity
to seek the Union‟s advice and that she understood options open to her prior to tendering
her resignation. Decisions such as Community Lifecare, supra, underscore the
importance of such evidence and I accept that access to independent advice at the
relevant time is an important consideration in applying the dual element test. The fact that
the grievor had the benefit of her Union‟s representation at the time in question and
understood options open to her, however, does not in and of itself supplant the need to
address both components of the applicable test.
91. This is reflected in the case law. In Canada Packers, supra, resignations were
tendered by employees who first conferred with their Union representatives, and the
arbitrator noted that it would be “difficult” for the Union to claim in these circumstances
that there was no “subjective intent.” (p. 8). While he concluded that the resignations
there were valid, the evidence of objective conduct differed from that before me, and in
the words of Union Counsel here, “signalled” an intent to resign. Specifically, the
resignations in issue in Canada Packers were tendered on September 9, and were only
27
first challenged through the filing of unsigned grievances on September 14, with signed
grievances following over the next two weeks. In the meantime, one or more of the
grievors in issue cleaned out lockers, attended at the workplace to pick up vacation pay,
and received vacation pay and pension plan payments.
92. In Motorways, supra, the fact that the grievor received the benefit of independent
representation was also important in the arbitrator‟s conclusion that his resignation was
effective. The arbitrator nonetheless considered “the objective evidence of the grievor‟s
own conduct in assessing the voluntariness of his decision.” (p. 26) He determined that
the disputed resignation was valid, noting not only that the grievor had received
independent advice, but also that his decision to resign “involved a weighing of the
alternatives, over an extended period of time” (p. 26) of approximately three weeks after
he was “encouraged repeatedly by the company‟s officers to think through his decision
and obtain the assistance of his lawyer in considering his options.” (p. 27)
93. In Dubord, supra, the fact that “the grievor had the benefit of union representation
throughout” (p. 387) was also important in the arbitrator‟s determination that resignation
was valid. He nonetheless noted that “arbitrators, adjudicating upon the validity of a
resignation, will look to both the subjective expression of the employee‟s decision to
resign and the objective manifestations provided by the employee following
communication of that decision.” (p. 381) The evidence in Dubord established that after
tendering his resignation on November 2, the grievor removed personal effects from a
locker, failed to report for scheduled shifts on November 5, 6, or 7, communicated with a
company representative on November 7 regarding final pay, separation papers and a letter
of reference, and attended at the workplace on November 8 to retrieve such documents,
all before seeking to retract his resignation on November 9. It was in that context that
28
Arbitrator Frumkin decided that the grievor‟s “subsequent actions were quite consistent
with the decision made by him on November 2….” (p. 387)
94. On facts closer to those before me here, Arbitrator Dissanayake concluded in City of
Ottawa, supra, that although the grievor had the benefit of Union representation and
formed what he found to be “the subjective intention to resign,” (p. 5), the drafting and
submission of a resignation letter following a four hour meeting with the employer and
the Union, and subsequent arrangements to clear out a locker before seeking to retract his
resignation the following morning did not constitute objective conduct of “a continuing
or true intention” to resign. (p. 6)
95. In considering the Union‟s argument that the objective component of a valid
resignation is absent in the circumstances before me, I am mindful that approximately a
week before her resignation, the grievor alluded to the possibility of resignation in
discussion with Mr. Sodhi. At the same time, however, she raised the prospect of
“switching” to day shift. In that context, her somewhat ambiguous reference to
resignation falls short of reflecting an intent to resign, and is quite distinct from the
evidence considered in Wellesley Central Hospital, supra, where the grievor requested in
advance of his resignation “a printout of what his pension entitlement would be if he
quit.” (p. 436)
96. I have considered that the grievor signed and submitted the letter of resignation on
May 5, 2016, after conferring with the Union for close to an hour. Arbitrators have
concluded, in cases such as Community Lifecare, supra, and Meadow Park, supra, that
the objective element of the applicable test was readily satisfied by the submission of a
“clearly worded letter of resignation.” (Community Lifecare, p. 70) While I too accept
that the submission of such letter, particularly one drafted with the assistance of the
29
Union, might in appropriate circumstances be accepted as objective confirmation of
intent to resign, this is a determination to be based upon the evidence in its entirety. I
share the view expressed in Motorways, supra, that “the existence of a written resignation
does not, of itself, amount to conclusive proof of an objective act sufficient to evidence a
resignation,” but rather, that the “fundamental issue of whether the resignation, be it
communicated verbally or in writing, is the free and voluntary act of the employee always
remains to be determined having regard to the facts of the particular case.” (p. 15)
97. As emphasized by the Employer, there is, in the resignation letter signed by the
grievor, nothing suggestive of irrational emotion as was the case in Toronto District
School Board, supra. It is also a far cry from the hastily scrawled “I quit” note
considered in Lewisfoods, supra. As Employer Counsel points out, it seeks a certain quid
pro quo on the grievor‟s behalf in exchange for resignation, and in that sense can be fairly
said to reflect what he referred to as a “calculated” approach to the situation at hand.
98. For the reasons set out above, I have not accepted as reliable the grievor‟s evidence as
to the circumstances in which Mr. Anteby came to write the grievor‟s resignation letter. I
accept, however, that it was he who drafted the letter that the grievor signed during the
final minutes of her meeting with the Union, at a time when she was both upset and
shocked to learn that she was to be discharged.
99. While the grievor signed that letter in the final ten to fifteen minutes in her meeting
with the Union after learning that discharge was a certainty, it cannot be viewed as
objectively manifesting the subjective intent to resign in the same way as the sort of letter
described as follows in Meadow Park, supra:
First, the letter states clearly and unequivocally that the grievor was resigning and
that she wanted no more to do with Meadow Park…. (S)he had been off work for
three days, for reasons unrelated to her problems with Ms. Kovacs…. I find it
30
significant that the letter itself is a quite lengthy document written in hand that
appears to be controlled and which recites in some detail a number of incidents
and events which have led the grievor to her decision…. (I)t is a letter that has
been thought through and which, given its length, must have taken some time to
compose. It is also noteworthy that the grievor gave some close thought to the
consequences of her decision for she gave specific instructions designed to ensure
that an anticipated bond deduction not come off her next salary cheque. Some
care was also taken to ensure that the note was delivered to Ms. Kovacs‟ home –
thereby ensuring that she receive it. (pp. 287-288)
100. While I have not accepted the grievor‟s recollection as to why Mr. Anteby came to
draft her resignation letter, there is nonetheless no doubt that the circumstances and
manner in which the resignation letter before me was drafted are notably distinct from
those considered in Meadow Park, supra. Further, while the letter drafted by Mr. Anteby
and signed by the grievor here conveys no irrational emotion on her part, nor does it
reflect the grievor‟s “close thought” over “some time” as was the case in Meadow Park.
101. The evidence establishes that after conferring with the Union on May 5, and
specifically after initially hearing that discharge was likely and ultimately learning that it
was in fact certain, the grievor signed the letter, before she and Mr. Anteby then met with
the Employer. While neither witness testified as to the length of that meeting, the
evidence before me of what was discussed is suggestive of a brief meeting. The
resignation letter was submitted to the Employer and immediately accepted. Keys and
employee identification were returned, in accordance with what Mr. Anteby had already
addressed with the grievor. Mr. Anteby had also already raised with the grievor that she
would need to retrieve “papers” from the workplace. While I acknowledge that Mr.
Sodhi and the grievor differed in their recollections of what was discussed in this regard
at their May 5 meeting, on either version of such evidence, an Employer representative
raised with the grievor at the time the need to deal with her personal effects in the
31
workplace. She and Mr. Sodhi then drove separately to the house where she collected
her belongings.
102. While the grievor had the benefit of her Union‟s representation on May 5, 2016,
there can be no doubt that the relevant events of the day unfolded in “quick succession”
at a time when she was both upset and shocked. Although the grievor had been aware for
some days of Peter‟s allegation that she slept on the job and of the fact that she was “in
trouble,” it was only when meeting with the Union on May 5 that she first came to
appreciate that she was to lose her job. I am satisfied that the steps taken from that point
in time on May 5 through to and including her attendance at the house to retrieve her
personal effects are appropriately characterized as hurried.
103. I accept the Union‟s submission that the rushed nature of such steps following so
closely upon the grievor first learning of her imminent discharge is an important
consideration in assessing whether objective confirmation of a subjective intent to resign
is lacking on the evidence before me, as alleged.
104. I find helpful in this regard the following excerpt from Brookfield Foods, supra:
Moreover, if, as in Re Metropolitan Toronto Board of Com’rs of Police and
Metropolitan Toronto Police Assoc. (1978), 18 L.A.C. (2d) 7 (Adams)
[application for judicial review dismissed 22 L.A.C. (2d) 63n], the oral expression
of intention to resign, uttered in emotionally charged and highly stressful
circumstances, is accompanied by “confirmatory objective conduct carrying out
the subjective intention” in the form of a written resignation prepared and
presented whilst also within the same highly stressful circumstances as those
triggering the subjective response, then even though this written resignation
would normally provide the “confirmatory objective conduct carrying out the
subjective intention” referred to above, it would not do so in these circumstances
unless a cooling-off period has intervened. In other words, when a resignation is
tendered in emotionally charged circumstances . . . there must be a reasonable
period for reflection before the employee‟s conduct will be taken as the true
measure of his intent. (pp. 297-298)
32
105. Also of assistance are Arbitrator Shime‟s comments in Toronto District School
Board, supra, regarding the importance of the element of time in assessing the objective
component of the applicable test:
What is significant in the cases is that when assessing whether there is a
confirmatory objective intent to quit, arbitrators have realized that the emotional
basis for an employee indicating an intention to quit may continue over a period
of time. This element of time becomes important in assessing a subjective
intention to quit and has always been part of evaluating objective intent….
Boards of arbitration have then looked to other conduct and the course of events
over time in order to establish a more objective basis to determine whether the
grievor intended to sever the employment relationship. (para 53)
106. Arbitrator Dissanayake expressed similar views in City of Ottawa, supra:
I find that neither acts of “subsequent” conduct are indicative of a continuing or
true intention, keeping in mind the purpose of requiring such objective conduct….
(I)t is recognized that the submission of a resignation can be a very stressful and
emotional situation for an employee. This would be more so here, where the
grievor was forced to choose between resignation and discharge the same day.
The purpose of looking for confirmatory objective conduct, is to ensure that the
employee had a continuing intention to resign once the stress of the moment
subsided. . . . The conduct of the grievor relied upon by the city. . . does not
constitute objective conduct confirmatory of his subjective intention, because that
conduct did not take place after the grievor had an opportunity to consider his
situation without the stress he obviously felt at the time. The writing of the letter
of resignation and the arranging for his locker to be cleaned out occurred in quick
succession over a brief period of time, soon after he had expressed his subjective
intention. . . . In these circumstances, I conclude that there is no objective
conduct by the grievor which manifests a continuing intention or is confirmatory
of his declared subjective intention to resign. (pp. 6-7)
107. The signing and submission of a letter of resignation, the return of Employer
property and the retrieval of personal belongings from the workplace may, in appropriate
circumstances, be viewed as objective confirmation of an intent to resign. Whether or not
that is so, however, is a determination to be based on the evidence in its entirety. While
the grievor‟s May 5 conduct must be viewed against the fact that she had the benefit of
her Union‟s representation at the time, I accept the Union‟s submission that the
immediacy and the speed with which the relevant events unfolded at a time of personal
33
stress upon learning that discharge was imminent must also be considered in assessing
whether the objective confirmatory conduct required in the dual element test is absent
here as alleged. Having considered the specific circumstances before me, I accept the
Union‟s argument that the grievor‟s actions on May 5 do not objectively confirm a
subjective intent to resign. Notably, unlike cases such as Canada Packers, supra, and
Dubord, supra, there is no evidence before me that the grievor then followed up with the
Employer and requested the letter of employment mentioned in her resignation letter.
Rather, the evidence establishes that the grievor‟s almost immediate next step was to seek
to withdraw her resignation. I recognize the distinction drawn in the case law between an
ill considered decision to resign followed by a change in heart, and a decision unintended
in the first place. I note as well the Employer‟s suggestion that there was no reason for it
to question the grievor‟s resignation at the time in question. It is my conclusion here,
however, based on all of the evidence before me that a subjective intention to resign was
not confirmed by objective conduct. Accordingly, having found that the objective
component of the dual element test is not satisfied in the circumstances before me, I find
that the grievor‟s resignation tendered on May 5, 2016 was not valid.
108. Counsel agreed that if I were to so conclude, I would remit this matter to the parties
but retain jurisdiction to address and decide any issues pertaining to remedy upon which
they are unable to agree. My jurisdiction is so retained. I note as well that Counsel have
not addressed before me what they contemplate will be the “next steps” in this matter and
what they understand the scope of my jurisdiction to be. Should there be any issue
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between the parties as to the scope of my jurisdiction and what flows from that, I remain
seized for that purpose as well.
DATED at TORONTO this 31st day of March, 2017
"M. Tims"
____________________________________
Mary Lou Tims, Arbitrator