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HomeMy WebLinkAboutMailloux 04-01-26B~~: Ontario Public ~ervice '~mpioyees ~nion and its ~ocai ~nion - and - ~'o~ei-Dieu ~race ~ospitai-Windsor ~mployer '1~ 'k~-~ ~: ~he ~rievance of ~harron ~ailioux dated ~anuary ~, ~6~4. ~P6~: ~.'~. Watters, ~oie Arbitrator ~O~ ~ ~O~: ~.~. ~mith, dounsei ~. ~ailloux, ~rievor ~R ~ ~'~0~: ~.~. ~arentette, Cbunset ~. '~{c~een, ~ssistan% 'Director, Human ~esources ~. ~tkinson, Director, ~ommunity d'risis Centre ~~: ~uly ~ and November 5, ~04 in Windsor, Ontario.. This proceeding arises fYom the grievance of~s. ~harron M~illoux dated'~anuary ~6", ~0d'4. ~he grievor cl'aimed"therein that she was unjustly dismissed and requested, by way of remedy, that she be mad~ whole. ~he issue, as framed'a~ the hearing, is whether the grievor resigned her part-time employment at the ~mmunity ~risis Centre on December ~3', 2'~03 and, if she did, whether her resignation was voIuntary or coerced. A~ the outSet, counsel' for the Employer advised'that there was a preliminary objection as to the arbitrability of ~he grievance. ~ore specificaIiy, the ~mpl°yer ciaimed'that the grievance was not filed within the mandatory time limits as set out in article i0 of' the colIective agreement. ~he par~ies agreed' that the hearing would not be bifurcated and that ail of the evidence would be presented prior to any consideration of'~he preliminary objection. R~idence fOr the Uhion was presented by ~he grievor and MS. ~udy ~arrah' ~he grievor, priort° the events which cul'minated'in ~his dispute, was a part-time ~en%at ~alth Orisis W0rker in ~/~e dommunity .~risis ~entre at ~otei-~ieu ~race H~spital" in W~indsor, ~ntario. ~he ~ommunity orisis O~ntre, which operates twenty-fbur ('~4)' hours a day, seven (~) days a week, provides counseIIing and' assessment services to persons experiencing a mental health crisis. ~he grievor commenced employment there in i§§'7' on a part-time basis. ~he became'f~ll-time in i~9~ but reverted to part-time in the ~pring of~O0~ when she obtained"ano~her f~I~-time position at ~he ~ancer ~entre at WindSor Regional ~spital. At the time material' ~o this proceeding, the grievor worRed bo~h part-time at -2- the Cbmmuni~y C~isis '~ntre and f%II-time at ~he Cancer ~entre. ~he grievor has worked in the fieid of' health care since i992. has a '~asters D'egree in SOcial Work. MS. ~arrah is a full-time ~entaI' Health Crisis Worker. ~he has also worked at the ~ommunity ~'risis Centre since Evidence for the ~mployer was presented by ~r. ~ob Atkinson. ~Y. Atkinson is the Director of the Cbmmunity CYisis Centre. ~e has occupied this position since JuIy, 1997~. As ~he Director, he is responsible for the overall operation of the program, including the supervision and scheduling of' staff. ~he Employer utilizes part-time staff to cover periods when the full-time staff are not working, namely, on weekends, holidays and vacation periods. On the weekends, there are three (~) shifts on each of' ~aturday and' Sunday. The shifts are g:00 a.m. to p.m., ~:00 p.m. to ~i:0~ p.m. and ~i:00 p.m. to g':~0 a.m. ~eneralIy, each of' the six (6)' employees forming the part-time complement are scheduled for one (~) of' the weekend shifts. Atkinson testified' that he attempts to equalize the number of' shifts given to the part-time employees and' that he further endeavours to give each of' them the same number of' day, afternoon and midnight shifts. The grievor was not scheduled f'or any midhight shifts in late 2003, as she could not work same for medical reasons. M~. Atkinson testified that he similarly attempts ~o equitably distribute statutory holidays to the part-time employees. ~hese holidays attract' premium pay. ~t was Atkinson~s evidence that if'a part-time employee worked a .particular statutory holiday, then he or she would not be scheduled to work the next one. ~ note, at this juncture, that the grievor was not available to cover f~II-time employees on vacation given tha~ she worked' elsewhere on a fUIl-time basis. ~r. Atkinson stated that he prepares and posts the part-time schedule one (i) month in advance. ~y way ofexample, the schedule for the month of October, ~0~ (~xhibi~ #~) was distributed to empIoyees at the end' of August, ~003. 9he grievor was not scheduled to work the ~hanksgiving Day hoIiday. ~. Atkinson advised' that the schedule for the month of December, ~0d3 (~xhibit #'4) was completed in the latter part of October, just prior to his one ('~) week vacation period, which commenced on October 24', 2003. '~ denied that the schedule was prepared in early October. ~. Atkinson believed' that the December schedule was posted' in late October dUring hisabsence. PUrsuant to that schedule, ~he grievor was assignedto work the 3:00 p.m. to ~:00 p.m. shif~ on Christmas ~ay. Mr. Atkinson suggested the grievor would have known in August, ~0~03~ ~hat she wouid be scheduiedto work on ~hris~mas Day given the fact she was not scheduled on ~he ~hanksgiving Day holiday. ~r. A~kinson described' his approach vis a vis part-time employees who require time off or are unable to work a specific shif~ or shifts. He testified that, in. this scenario, employees are expected to leave him a no~e or message, before ~he schedule is distributed~, relating to. their request. ~n tha~ event, ~r. Atkinson tries ~o arrange the schedule in a way that will accommodate the employee~s need for time off". Mr. A~kinson testified'that if'an employee determines, after the posting of'the schedule, that they require time off then it is their personal responsibility to mare the necessary arrangements with other employees to ensure the shift is covered. '~t is clear fYom alt of the evidence that, at the materiaI time, the grievor was aware of' this expectation or practice. ~ore specifically, she agreed that once a schedule is pubIished, it is expected' that employees wilt make their .own arrangements, through a trade of shifts or otherwise, if they are unable to worx a particular shift on the scheduIe. ~he grievor, in this instance, did' not want to work the Christmas Day shift as she planned to have a family dinner that day at her home. ~he testified', at some ~ength, about ~he steps she took to get the day off. ~hese efforts included several conversations with Mr. A%kinson on the subject. ~. At~inson''s recollection of' their exchanges differed materially, in several respects, fkom the grievor's accoun~ of'the events. ~he. si~uation, ultimately, led to a telephone conversation between thegrievor and Mk. Atkinson on ~uesday, December 2J, ~:0~. ~he ~mpl°yer asserts that ihe grievor voluntarily resigned her employment during the course of'the conversation. ~he Union, in contrast, main~ains that ~he grievor was then presented with an ultimatum ~o either work Christmas Day or resign and:' that she was pressured or coerced by ~. Atkinson to adopt ~he latter course. ~n the circumstances, it is necessary for purposes of'resolving this dispute-to reference the competing version of events in some detail. The grievor testified' that she telephoned' FLr. Atkinson"s secretary shortly after October i, ~0~ to request that she not be scheduled' to work on Christmas Day. i~ was her evidence that the secretary told her the schedule had airead~ been prepared as Atkinson wanted to complete it before he left on vacation. At some unspecified point in October, the grievor saw a copy of the schedule for the month of December. As previously mentioned', indicated that she was to work the 3':00 p.m. to i~:66 p.m. shift on Christmas Day. The grievor subsequentiy contacted F~r. Atkinson upon his return from vacation. ~he believed that she did so in either late October or early November. At that point, the grievor toId ~r. Atkinson that she was unable to work on ~hristmas ~ay as she pIanned tO have the family dinner at her home. I% was the grievor'S evidence that Mr. Atkinson responded as follows: "'Don't worry, just.caII and get someone to replace yourseif.'~' The grievor acknowledged that ~. A~kinSon did not then undertake to make the change for her in respect of the shif~ in question. Following this conversation, the grievor called all of'the part-time, and possibly the f~II-time, staff'in an effort to find a replacement. ~he was unsuccessful in this regard. The grievor testified that she~eIephonedMr. Atkinson back in the first part of November. Ehe recalled that it was within a week of their initial discussion, in cross-examination, however, she appearedto accept the suggestion that the telephone caiI was -~- actually piaced on N0vember ~'~, ~0~. ~t was the grievor"s evidence that~r, Atkinson gave the fbi~owing commitment during the course of their exchange: "'Don't worry about it, it won't be a problem. I'~I'~' get someone by next week.'~ ~he grievor stated' she assumed f~om this remark that ~. A~kinson would secure a replacement to work her shift on dhris~mas Day. ~n cross- examination, the grievor was advised tha~ ~. A~Rinson wouid testify that he told her he would' try to see what he could' do, but ~hat at no time did he say he would ensure ~he shif~ was covered. I recorded'the grievor~s response as, '~ disagree'~. '~ was the grievor~s evidence that, fbilowing the above conversation, she did' not make any further efforts to find' a replacement. S~he stated ~hat she did not cali~r. A~kinson back to determine ifhe had fbund someone to cover her dhristmas shift. ~n her words, she was ~just too busy wi~h everything~''. ~he grievor advised' that she assumed ~r. A~kinson would' contact her if he was not able to cover the shift. ~he grievor recaIied' that she spoke with ~r. A~kinson~s secretary a~ some poin~ in the week before ~hristmas and was informed that she was still on the scheduie for ~'hristmas Day. At tha~ juncture, she telephoned'~. A~Rinson. '~he grievor ~estified that he then toId her she wouId have to work the shift, as she was on the schedule. ~-he further recalled ~ha~~. Atkinson added that she should'be able to find a repIacement. ~he grievor agreed' ~hat during ~his discussion she made the following comment to ~. ~Atkinson: "~ don"t know if ~ can get anyone to replace me and' f -T- might have to resign if' i" canrt.~' I'n cross-examination, the grievor acKnowledged'that she had' thought about resigning. In Ghe days immediately following this conversation, the grievor called oGher employees to see if'~hey would' take the shift in issue. ~he advised that she was able to find another employee Who was willing to work the hours of' ~:~6' p.m. to i~:0'0 p.m. The grievor was unable, however, to get anyone to agree to work the hours between j:66 p.m. and' ~:00 p.m. The grievor advised' that she visited' her dbctorrs off'ice on Mbnday, December 2~, ~00~ as her blood pressure was extremely high. She had'seen the doctor previously for this problem and'was waiting to ~ake a series of' related tests scheduled' for J~nuary, 2'004'. l't was the grievorrs belief' that her blood' pressure '~'spiked''~ on December ~nd'as a consequence of the problems she was experiencing in trying to find' a replacement to work her ~hristmas Day shift. 'The grievor telephoned ~r. Atkinson during the morning on Tuesdhy, December 2'3', ~00J'~ ~he was working at the dancer Centre at the time she placed ~he call. T~e grievor testified she informe~ Mr. ~Gkinson that she had' found another employee Go wor~ from ~:0'0 p.m. to il:0'0 p.m. on ~hristmas ~ay but had been unable to secure a replacement fbr Ghe ~:00 p.m. Go ~:0~ p.m. portion of' ~he shift. '~Ae stated that she also told ~. Atkinson ~hat she had visited' her physician on the prior day and' that he .had' been prepared ~o provide her with a note to excuse her working on Christmas Day. ~he grievor indicated, however, that her preference was ~o~"work it out"-with'~tr. Atkinson. ~he grievor testified that Mr. 'Atkinson then stated there was nothing else she could do and. that she needed. to either work or resign her employment. ~t was her evidence that she replied bystating that was not something she wanted'to do. The grievor recalled'that ~r. ~tkinson proceeded'to advise her that it was her choice. ~ounsel for the ~mployer suggested' to the grievor, in cross-examination, that Ffr. ~tRinson never told her she would have to resign but, instead, she had indicatedto him that she wouidhave to resign given her failure to ~No ~ did not say find a replacement. ~ recorded her response as, , that.'~ ~he grievor maintained' that she did not tell MY. Atkinson she was resigning fYom'her job over this issue. The grievor testified' ~hat she felt "pressUred." by ~r. Atkinson. ~-t was the thrust of' her evidence that he was forcing her to do something ~hat she. did' not want to do~. ~he made the following observation concerning their exchange on December ~rd: '~aybe he thought ~ was resigning but ~ wasn't resigning". ~n cross-examination, the grievor agreed that, at the time, she did, in fact, have the option to work the shift. ~he further agreed' that if she had subsequently calied '~. Atkinson back, and had indicated a willingness %0 work on ~hristmas Day, then she would' .probably have gotten her job back. The grievor indicated that the above-d~scribed telephone conversation with ~. Atkinson upset her and caused her to cry. ~he described'herself'as being "too emotionally distraught to think rationally at that time". ~e agreed that Mr. Atkinson spoke to her about unrelated' matters in an effort.to calm her down. The grievor also recalled tha~ he indicated he would have to ge~ on the teIephone in order to reschedule ail of' her January shifts. ~he grievor testified that she was prepared to work ~hose shi£~s. '~he agreed that she did' not advise ~r. ~tkinson of' that fact. 'Lastly, the grievor testified'that Mr. Atkinson asked her confirm her resignation by faxing a ~etter to him. fn cross- examination, she was unable to recall ifshe agreed to comply with his request. ~he grievor acknowledged'that she might have said'she would fax him a latter. ~n re-examination, the grievor asserted that she did not '~offer to send' in her resignation'~. ~t is clear that ~he grievor did not forward a letter of' resignation ~o the ~mp~oyer. · he grievor s~ated' that she was very distraught after her telephone conversation with~Y. A~kinson. After the aforementioned' conversation, the grievor called' ~s. parrah and' told'her what had' occurred earlier that morning. ~he indicated that she was crying at ~he time of'the exchange with her co-worker, fn the grievor~s words, she '~needed to process what had happened'~.. When asked by counseI"f~r the Onion to expiain what she thought had'occurred, the grievor responded as follows: '~ thought my job was gone. didh't have a job anymore and' i didn"t' have a choice in the ma~ter.~ ~. ~tkinson maintains a book in which.he records telephone calls with staff and voice-mail messages they leave for him. ~he excerpt f~om this book relevant to this proceeding was filed' as '~xhibit #6. ~'t is apparent f~om a review of the exhibit that the notes do not rePresent a detailed or in-depth account of' the various calls and messages. Er. ~tkinson stated that he was unaware the grievor contacted' his secretary in October, ~0'6'f about not working on Christmas ~ay. His notes disclose that he first spoke to the grievor about this mat~er on Nbvember ~, ~O0S. ~ recalled' that she expressed her interest in not working on ~hris~mas Day as she was preparing the family dinner. ~Y. Atkinson testified he told the grievor that it was her responsibility to find a replacement. He suggested' that she could switch swifts with another part-time employee and that, if' no other part-timer was available, she could''~go down the full- time seniority list". The grievor left a voice-mail message for ~r. Atkinson on November i~, ~06~. On the basis of' the message, ~. Atkinson understood that part-time employees were not interested' in switching shifts with the grievor but tha{ ~'herry Quinn, ~he most senior full-time employee, was '~'probably'~ willing to work on ~hristmas Day. The grievor recalled advising ~r. Atkinson of this development, but was unsure as to when she did' so. '~he grievor left another voice-mail message for ~?. Atkinson on ~ovember ~8, 200~. ~r. A~kinson~s notes suggest. ~hat the message was tha~ ~s. Quinn could not take the shif-~ but ~'ill, a part-time employee, was prepared to work some, bu~ not ali, of the hours. The grievor recalled that she advised~'r. Atkinson that ~S. Quinn was unable to work the ~Sristmas Day shift. ~he was uncertain as to whether she told'him abou~ ~iil~s willingness to -~i- work par~ of this shift and' as to the date on which she might have d~ne so. F~r. Atkinson stated' that, at this juncture, it was his assessment that the grievor was still attempting to satisfy her responsibility to f~ the shift. ~. Atkinson next spoke to the grievor by telephone on ~ovember ~0', ~'~'~. ~is notes of their conversation read: "'~harron - go down full time ~ist - admitted didn't d© last Xmas~ ~r. ~tkinson testified' ~hat he told the grievor she coul~d' call employees on the fUll-time seniority list in an effor~ to secure the desired'coverage. ~e stated'that he was preparedto entertain ~hat option even though it would result in extra cost to the ~mplOyer. ~r. Atkinson emphasized' ~hat he to~d' the grievor that' she could get the fUll'time list and that it was her responsibility to make the calls. ~e did"no~ re~a~ asking his secretary to make any of' these calls on the grievor~s behalf". ~re importantly, ~.. AtRinson testified'tha~ he never told'the grievor on Nbvember 20th, or at any other time, that he would find a replacement for the ~hristmas Day shift. ~n his words, "~t was always her 'responsibility to db that.'~ ~t would'appear that in the conversation of'Nbvember 20th, the grievor mentioned to ~. Atkinson that she h~d worked on ~hristmas Day of' ~00'~. ~r. ~tkinson chalienged' that statement, as he was aware that the grievor had secured a replacement for ~hat day. ~ was lef~ with the impression that the grievor then acknowledged ~hat she did not work on the prior ~hristmas, even ~hough she was _~', scheduied to do so. ~n all of ~he evidence, it is clear ~hat Atkinson's understanding of the situation was correct. M~. Atkinson again spoke to ~he grievor by ~elephone on December 19, 206~. ~ was ~. Atkinson'~s evidence that the grievor informed him that she had been unable to f~nd anyone ~o cover ~he shif~ and" that she was considering resigning. ~e s~ated he responded by'~on~inuing ~o encourage her to keep looking as people sometimes change their minds at the las~ minute'~. I note that Atkinson did not reference any ~hough~ of a resignation in his brief' note about their exchange. ~r. Atkinson next spoke to the grievor on the morning of December 2~, ~00~. As mentioned earlier, she telephoned'him while a~ work a~ the ~ancer ~entre. M~. A~kinson testified ~he grievor told him that she had been unsuccessfhI in finding someone to cover ~he shift, that she had a family dinner planned and, mos~ importantly, that she was going ~o resign. ~e stated' that he was very surprised byher decision. ~efore i~ was communicated ~o him, ~r. Atkinson believed that the grievor, "as a professional', would~ work the shif~ if she couldn~ find anyone to take i~ for her~. was his further evidence that prior ~o the resignation, he never spoke ~o the grievor abou~ the consequences of-her no~ working on Christmas Day. More specifically, Mr. Atkinson maintained'that he never presenced her wi~h an ultimatum of work or resign. recalled the grievor saying that she liked' her work but was, nevertheless, going ~o resign. ~ did no~ recall her saying i~ was a decision ~hat she did not want~ to make. ~r. Atkinson agreed' that -~- he did not try Go talk ~he grievor out of' resigning. ~ made ~he f~IIowing comment on this point: "~he is a professional and ~ treat my s~a£f as prof~ssionai. ff' they tell me they are going to do something, ~ accept that. ~ accept ~heir word when ~hey tell me something."'' M~. ~tkinson acknowIedged that the grievor was upset and' crying during ~he course of their teIephone conversation. ~ was his evidence that he tried' "to calm her down'~ and' that he ~a~er thanked her f-or ail her years of service. Mr. A~kinson recaiIed that' the grievor aIIuded' to "some medical issue" without getting in~o any de~ail about it. ~ did not remember her saying that she had' visited her doctor on the preceding day and' that the doctor would have given her a note in respect of' dhristmas ~ay. ~. Atkinson agreed'that he mentioned'to the grievor that he wou~dhave to fill ail of her upcoming shifts in view of her resignation. ~e testified' that he aiso asked' her to send' him a note in writing confirming her decision to resign. ~r. Atkinson sta~ed the grievor responded by saying that she wouId fax such a note to him and that she would contact ~he ~man Resources ~epar~ment about ~he re~urn of'her identification and'keys. Mr. Atkinson advised'that he never. received a note f?om the grievor confirming her resignation. ~imiIarIy, he never received her identification and keys. P~IIowing his conversation with the grievor on ~ecember ~frd, ~r. A~kinson went to the ~uman Resources Department and"prepared the fblIowing letter: -i~- '"Secember ~, ~r ~harron: ~his le~er will serve to confirm our verba~ discussion ~oday whereby you provided no~ice sta~ing that you were resigning your employment with Mo~e~-Dieu ~race Hospital immediately. ~Iease be advised' that your record' of* employment and' ail final earnings wiII be f'orward~d to you by mail once they have been completed. ~he Mospi~aI wouId'aIso ask ~hat you return your Hospital ~'~ badge and ali keys fbr the fhciiity directly to myself'. (~khibit #~)'~ Mr. Atkinson testified ~hat he elected to send the above letter as a ~oliday period was approaching, during which no one would'be in, and ~hat, accordingly, he wished "to get it roiiing~. Ms. Farrah testified' that she received a telephone call from ~he grievor at abou~ lO:O0 a.m. on December f~rd. 'it was her evidence the grievor told her that she could' not believe she had' been given an ultimatum to either work or resign and that she had to.adopt the latter course of action because she was unwilling to' work on ~hristmas Day. Ms. Parrah was asked in examination in- chief as to whether she had' any further discussion with the grievor about wha~ she was going ~o do. S~he answered tha~ ~he grievor said "she was going to resign because she wasn~ willing to work two dhristmas' in a row'~. MS. Farrah added ~ha~ ~he grievor ~hought such a requirement was "very unfair". ~s. ~arrah indicated' that she aIso thought that would be unfair. %~ is clear on the evidence that Ms. Farrah was then unaware that the grievor didnot, in f~ct, -iS- work on ~ristmas 2002. Ms. Farrah indicated~'that the grievor seemed upset and' was crying dUring their telephone exchange. MS. Farrah recalled that Mr. Atkinson entered the Staff R'oom on December 29rd and' mentioned to the two ('~) or three employees there that the grievor had agreed to resign. S~he recalled that he used language which suggested that the grievor was happy with her decision. MS. Farrah, on the basis of her earlier conversation with the grievor, challenged Mr. Atkinson's suggestion, i'ndeed, she in substance told him that the grievor was upset, and not happy, and that the decision did not seem to be her own. Mr. Atkinson did not dispute his visit to the S-tall Room. did not recall, however, Ms. Farrah's statement to him that the grievor felt that she had no choice in the matter. ~n cross- examination, Ms. Farrah advised' that she is working towards a Masters of' ~ociai Work Degree. She acknowledged that she has a ~ield placement at the Cancer C~ntre as part of her program of studY and that the grievor acts as her supervisor under this placement. Ms. farrah testified that Mr. At~insonrs secretary '"casually asked'" her if' she would work on dhristmas ~ay. Ms. Farrah was unsure if' this occurred before or after December 2~rd. · he grievor did not show up to work her Christmas ~ay shift. in cross-examination, she agreed that ~he decision no~ ~o work that day was not premised on medical grounds. Rather, it was because she had made other plans which she was unwilling ~o change. ~ne grievor did advise that she was very distraught on ~ristmas ~ay and that she collapsed at home that night. ~he grievor also f~iIed' -16'- to appear for her shift on ~ecember ~th and'for ail of'her January shifts. She did, however, work at her fhII-time'job at the dancer Centre on December ~th and during ail of January, except for a period at the end of the month when she was on vacation. 'Mr. Atkinson testified that after his meeting with the grievor on December 25, 2003, he started to caIi other employees to see if' they would work the Christmas ~ay shift in question. Re stated that none of' the empioyees were prepared to worR the entire shift but that one (Z) of' the full-time staf'fwas willing to work between 7:00 p.m. and 1Z:O0 p.m. UlEimateIy, ~r. A~kinson worRedthe hours between 3:00 p.m. and 7:0'0 p.m. ~t was the grievorCs evidence that she received~r. Atkinson's letter of ~ecember 23rd (~Xhibit #3') on ~ecember ~0, ~00~. ~he testified' that she did not respond to it, as she was in the mid~Ie of' getting the medical tests mentioned earlier, and that she was busy pIanning her son"s wedd'ing. The grievor did not speak to the Union about her situation until January ~5, ~004. It would appear that she was encouraged to do so by Ms. Quinn. As noted, her grievance was filed on January ~, ~004. The coIiective agreement provisions relevant to the resoIution of the preliminary objection are as follows: Article l0 - Grievance and ArbitrationProcedUre ~0.06 'Discharge Grievance A claim by an employee that she has been unjustly discharged shall be treated as a grievance if a written statement of' such grievance is Iodged by the employee with the ~ospitaI at ~tep ~o. 2 within seven (7) caiendar days after ~he date of' discharge is ef'fected. 10'.il Nb mat~er may be submitted to arbitration which has not been properiy carried' through ail requisite steps of the ~rievance ~rocedure unless agreed to by mutuaI parties. ~6.i~ ~he Arbitration 'Board shaiI not be authorized Go make any decision inconsistent with the provisions of this Agreement, nor to alter, modify, add to or amend any part of' this Agreement. ~0.~5 ~he time limits set out in ~his Article are mandatory and f~iIure to compIy strictly_with such time Limits, except by ~he written agreement of the parties, shall resuIt in the grievance being d~emed~ to have been abandoned. ~Se applicable provision of the ~abour ~elations Act~ 199~' reads: 4~('i~)' ~'xcept where a collective agreement states that ~his subsection does not apply, an arbitrator or arbitration board may extend' the time fbr the taking of any step in the grievance procedure under a collective agreement, despite the expiration of the time, where the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantiaIIy prejudiced by the extension. Cbunsel for the Union acknowledged that the grievance of ~anuary ~6, ~0'04 was not filed'within the time limits established' by ~he colIective agreement. Article ~0.~' requires that a grievance of~ this nature be iod~ed by the employee '~within seven (7) calendar days after the date of' discharge is effected'~'. ArticIe i0.i$ describes the time limits as.mandatory and' states that failure to compIy strictly with same shall result in the grievance being deemed to have been abandoned, in the absence of~a written agreement by the parties. ~Iearly the grievance here was not flied' within seven ('~) calendar days of' the grievor~s receipt on December ~th of~r. Atkinson~s letter of ~ecember ~, 200~. ~dditionaliy, the parties didnot agree in writing to extend time limits. ~t is the position of' ~he ~nion that, no~withstanding this fhiIure to comply with the contractua~ time limits, ~ should' exercise the statutory discretion provided for by seCtion 48(16) of ~he Labour Relations Ac~, i99~ to ex~end'the ~ime f~r the fi~ing of' this grievance. ~ounseI f~r the 'Uhion argued that reasonable grounds exist for the requested extension and that the ~mpioyer will not be substantially prejudiced by the exercise of the discretion to extend' time iimits in this instance. ~bunsei fbr the Union referenced the f~Ilowing reasons for the grievor~s d~Iay in filing her grievance: ('i)" she was upset with what had occurred at the workplace with respect to her request not to work on Christmas Day; ('ii)' she was upset because of' her medical tests scheduled' for ~hnuary, ~'0'64; (iii)' she was busy planning her son"s wedd'ing; and ('iv)' she thought, from her discussion on ~ecember ~rd' with ~r. Atkinson, that she had no choice but to work or resign. Counsel noted'that the Union was not copiedon ~r. Atkinson's letter and that the grievance was filed as soon as the grievor spoke to the Union abou~ the matter. ~he submitted that, even if' there was some negligence on the part of' the grievor in not proceeding earIier, I should consider the serious nature of the grievance and ~hat the events of ~ecember ~2rd' Ied' to the Ioss of' the grievor~s employment at the dommunity ~risis C~ntre. '~unseI argued that, in responding to the Uhion~'s request for an extension of' time iimits, this arbitrator is not limited to assessing ~Se reasonableness of the excuse of'f~red by the grievor. I was asked to dismiss the timeliness objection and" to entertain ~he merits of the dispute. P~om the perspective of ~he ~nion, the ~mpl°yer would not be substan~ialIy prejudicedby an extension of time limits as the delay was not extensive, ail necessary witnesses are available and' there are no third' party interests to consider. ~he ~nion relies on the fallowing authorities in support of' its position on the preliminary objection: ~e ~ecker Miik'~bmpany Ltd'. And~ ~eamsters Union, Local (~urke~t); Re ~erranti-Packard ~ransformers Ltd. And Uhited ~teeIworkers Of' America, LocaI 5788 (~aefIing); Malif~x ~mployers Association v. ~nternationaI Longshoremen's Association, Local 2~§, In Re Becker Milk d'ompany Ltd'., there was a two ('~)' month delay between the grievor~s termination and the date the ~mpioyer received the grievance. In deciding to exercise the discretion to extend time limits under section '~(5'a) of the ~abour Relations Ac~, R.~.O. i~f0, c.~'f~, which contained ~he same criteria as present section 4~(~6), the arbitrator made ~he following observations about how to approach an issue of'this nature: "~he exercise of the equitable discretion vested in an arbitrator under s.~('Sa)' of' the Ac~ requires a consideration of' at least three factors. ~hese are: ('i)' the reason far the delay given by the offending party; (ii)- the ieng~h of the delay; (iii) the nature of' the grievance, ff' ~he offending party satisfies an arbitrator, notwithstanding ~he delay, that it acted' with due diligence, ~hen if'there' has been no prejudice the arbitrator should exercise his discretion in favour of'extending ~he time-limits. ~f, however, the offending party has been negligent or is otherwise to blame for the deIay, either in whole or in part, the arbitrator mUst nevertheless consider the second' and' third factors ref~rredto above in deciding if' reasonable grounds exist for an extension of"the time limits '~f the offending party has been negIigent in its processing of' the grievance but the delay has been of-short d%ration an arbitrator would' be permitted' to rely on the short period' of'd~Iay as constituting reasonable grounds for an extension. ~f· ~he grievance invoIves the termination of'an employee, as distinct f~om some lesser form of' discipline, this is also an equitable consideration which must be taken into account, in deciding if there are reasonable grounds to extend' the time iimits ........................... ~he term ~reasonable grounds for the extension" as found' in s.J~(Sa)~ of'the ~ct is not synonymous with the reasonableness of the excuse advanced' by the off~nd'ing Party. ~aving regard· to the purpose of the section the term carries a broader signiflcation which requires ·the arbitrator to weigh a number of' factors, including but not necessarily restricted to those which have been set out above.'~ ('page 2~0-~1)" ~n 'Re p'erranti-gackard T~ansfbrmers Ltd., a grievance was not filed until thirteen ('i~)" months after ~he discharge, fn that case, the grievor had been off' work and in receipt of' Wbrkers~ Compensation Board'benefits as a resuIt of'a workplace injury. As of-the date of' the company's termination Ietter, the grievor was empl'°yed in a placement arranged'" under the aegis of" the rehabilitation branch of- the Workers~' ~ompensation ~oard. The ~mpioyer considered' that she has quit and' removed' her f~om the seniority list. 'lb deciding to extend the time limits, the arbitrator adopted the approach taken in Re ~ecker ~ii'k company Ltd. ~n this regard, the award' reads: "The significant policy consideration outlined in those remarks in the case here is that, notwithstanding that there may be a lack of due diligence, or where there may even be evidence of" negligence or blameworthiness on the part of' the person or persons responsible fbr 'initiating or having carriage of'a grievance, an arbitrator must consider the ~ength of'delay and' the nature of the grievance i~seif. ~ndeed', where the grievance is one invoiving termination of employment,.as opposed ~o other, less significant matters .................... , the nature of' ~he grievance itself must carry weight and be taken in~o account in deciding whether or not reasonable grounds exist fbr exJ~ending time-limits ......................... ~ ('page 320)' ~h ~alifax R'mployers Association, a grievance against termination under a Last dhanCe Agreement was not fiIed until two (~) years after the dismissal. ~e arbitrator, in that case, extended' the time limits for fiiing the grievance under the authority of section 60(~.~) of the ~anada Labour Cbde, '~.~.~. igfh, c. L-~. ~hat provision contains language similar to %hat found' in section 4~(~6) of ~he Labour Relations Ac~, ~9~5. ~h exercising the statutory authority, the arbitrator determined that the grievance related to the most serious industrial decision, namely discharge, and that the Last dhance Agreement on which the discharge was based' was prima facie discriminatory under the ~anadian ~uman Rights Act, R.~. ~'9~5, c. ~-6. ~he arbitrator's decision was quashed by a ~hamber's judge. Mis decision was subsequen~iy reinstated' on appeal to the ~ova ~cotia dourt of' Appeal. ~he majority of the ~burt held that the arbitrator's ~ecision to extend the time ~imits was not patently unreasonable. On this point, the award reads: " .................... ~here can surely be no reviewable error in his taking in~o account that the grievance re~ated ~o the most serious workpIace penaIty-dismissai-and that it was based on an arguably discriminatory and unlawful agreement.. (page iS', paragraph' ~n response, counsel for the ~mployer argued' that the time limits applicabIe here started' to run on December ~rd and' not on December '~'O, ~O'O~. ~bunsei stressed that the grievor complained about an ultimatum allegedly given on the former date. Additionally, she noted that ~ecember ~rd was the date of both the grievor"s resignation and the ~mployer~s acceptance of' same. ~bunsei suggested that if' the time limits only began to run on December J6th, ~hen the grievor would' have no excuse for not working the shift scheduled for ~ecember it is the position of' the'~mployer that the reasons advanced' on behalf-of the grievor do not constitute adequate justification for failing to comply with the time limits, dounse~ for the ~mployer asked me to keep in mind that the parties intended' fbr these limits to be mandatory. ~he further noted'that the grievor"s situation or condition did not prevent her from working at the Cancer dentre in ~he period' material to this issue. C°unsel" submitted that the grievor had plenty of opportunity in this period· to telephone a Union representative for purposes of' initiating a grievance. On her analysis, it is not a legitimate excuse fbr the grievor t© say she was too busy to take such a step. ~ was urged- to conclude that this was simply not a priority f~r the grievor and that neither she nor the Union hadpresentedany reasonable grounds fbr the relief' claimed. d°unsel ~or the ~mployer also submittedthat the exercise of' -f~- discretion in this instance would cause substantial prejudice to the ~mployer. ~rom the perspective of' the ~mpl°yer, the delay in filing a grievance reinforced its belief-that the grievor intended to resign on December2'3,t~'" ~00~. ~ounsel argued' that re~iance on this belief' effectively deprived the ~mployer of the opportunity to later treat the grievor"s failure to attend for scheduled' work as a mat~er of discipline. Por ail of ~he above reasons, it is the position of the ~mpIoyer that the preliminary objection should' be sustained and the grievance dismissed. ~t is apparent from the way in which this case was presented' that the ~mployer was not prejudiced vis a vis its ability to effectively marshall and'adduce evidence relating to the merits of' the dispute. ~ accept that the grievor~-s delay in filing a grievance to contest the resignation may have reinfbrced the ~mployerCs belief' that she actually intended to resign fYom her employment'. ~ fhrther accept that, as a consequence, the ~mployer may have considered i~ as unnecessary to impose timely discipline for what might have been categorized' as a work refusal. I no~e, however, that the ~ployer did not seek to adVance this form of' alternate argument during its case on the merits. ~n the final analysis, I' have not been persuaded that the E~ployer would experience substantiaI prejudice through an extension of~ the time Iimi~s. ~ am not satisfied' with the reasons given by the grievor to explain the delay surrounding ~he filing of' her grievance, fn my judgment', she could' easiIy have fiied' the grievance in a timely -~4L fashion. '2' note that there is no evidence that her medica~ condi'tion made it d~fficult, or impossible, f~r her to do so. ft is clear that the grievor continued ~o work f~li time a~ the~ancer Centre in the periodprior to January 26', ~00~. i accept, however, on ~he basis of the jurisprudence that the reasonableness of the grievor's excuse or explanation is not the only f~ctor to be considered in the decision whether to exercise the discretion provided far under section 48(~i6)' of' the Labour Relations Act, i995'. As the above-cited awards indicate, an arbitrator confronted with a request to extend' time limits is also entitled' to assess both the length of the delay and the seriousness of'the issue being grieved. ~ere, the delay was of~ relatively short duration. P~rther, the grievance concerns an issue thm~ could result in ~he termination of" the grievor~s employment relationship, albeit a part-time one, with the Community ~isis ~entre. After conSiderable thought, I conclude that these latter two ('~)' factors support the exercise of discretion under section 4~(1¢) to extend the time limits under the collective agreement fbr the filing of~ ~he instant grievance. I' am not precluded f~om exercising such ~iscretion simply because the time limits are stated to be mandatory. Rather, the statutory discretion can only be removed through clear language in the collective agreement to the effect ~hat section 4~(1~) of the Labour Relations Ac~, i995 does not apply. Accordingly, ~ elect to proceed to an adjudication of'the merits of ~he grievance. It is the position of the Cnion that the grievor d~d' not voluntarily resign f~om her employment at the COmmunity Crisis Centre. ~ather, f~om ~he Union''s perspective, ~he grievor was a vulnerable employee who was desperate to have ~hris~mas ~ay offand who thought she had no choice but to work or resign. ~ was urged' to find that, in the circumstances of this case, what occurred was an Employer initiated resignation. ~t was the submission of" counsel for the ~nion that it was not open to the ~mployer to treat the grievor~s refusal to work the shift as a resignation. ~he argued tha~ while the Employer might have been able ~o trea~ it as insubordination, it couid not deprive the grievor ofher right to contest discipline in ~he context ora work refusal. ~ut another way, counsel stressed that the ~mpIOyer couid not deem a work refusal to be a resignation. dounsel f0r the Union submitted. that the grievor was a credible, cooperative and honest witness who testified to the best of'her ability and recollection. Counsel stressed~hat the grievor consistently asserted that she did not intend to resign on ~ecember 2~, ~60~ and that she was given an improper ultimatum by ~r. Atkinson. C~unsel contrasted the grievor~s demeanour while giving evidence with that of' ~r. Atkinson. On her assessment, the iatter was evasive in cross-examination and could no~ recall, or was unsure about, a number of significant points, fn the words of counsel, ~r. Atkinson displayed ,,a selec~ive memory going to credibility". Counsei for the ~nion argued that the grievor did'not possess or demonstrate a subjective intent to resign. ~he noted ~hat until December ~frd, the grievor did not understand ~here would be a severe consequence to her not being abIe to work on dhristmas Day. Counsel suggested that up until that point in time, the grievor was stiiI attempting to find another employee to cover her shift. Counsel emphasized that the grievor was upset and crying, both during and after her conversation with ~r. Atkinson on December ~frd, and that she believed that she had no choice but to resign' after being given the Directorf's ultimatum. ~Se maintained', in substance, that the grievor never intended to resign but was forced to do so by Mr. Atkinson. CounseI reference~ the f~ct that the grievor never provided a letter of resignation and that she did not return her keys or identification to the ~mp~oyer. ~he f~rther observed that the grievor filed a grievance as soon as she received ad~-ice f~om the Union. ~ounsel' aIs© submitted that the evidence failed to disclose any objective confirmation of an intent to resign. ~ounsei suggested that the grievor d~ not report f~r work in January, ~0~4 as she understood tha~ ali of her shifts had been covered'. ~n her words, ~he grievor thought her job was gone after her ~eiephone discussion with ~. Atkinson on ~ecember ~, ~ounseI insisted, however, that the grievor had not resigned either in fact or in Iaw. · he Union reiies on the following awards in support of~ its position that the grievor should be returned to her part-time job as a ~enta~ ~eaIth Crisis Worker with fuji red?ess: Re Beacon ~ii~ Lodge, ~t~awa And 0n~ario Nurses~ Association (i~), ~ L.A.~ ('3d) 65 ('Brent); ~e Prince Rupert Fishermen~s Co-operative Association And Uhited Fishermen And Allied' W~rkers ~hion 19 L.A.C. ('id')' 1~9 ('~arson). fn Re Beacon Hill' Lodge, the grievor, a ~egistered'Nurse, was given a choice between discharge and resignation. ~his of'f%r was coupled' with unwarranted threats of' proceeding before the professional disciplinary body. As a consequence, the grievor wrote out a brief'note of'resignation. It is cIear f~om a reading of the award that the Employer deliberately sough~ to get the grievor to resign, in the process of' determining that her resignation was not voluntary, a majority of' ~he Board of Arbitration stated' as follows: ". ....................... We also agree that, in ord%r to conclude that there has been a resignation, an overt act of some sor~ is needed from which ~he intention to end the employment relationship can be inf%rred. ~is has often been referred to as the objective test. In cases where there is a clearly worded letter of resignation or where ~here have been clear words of' resignation spoken and' heard'~ and where nothing else occurs to suggest that the intention to resign was not present, the objective test is satisfied. ~rior t© the decision of'the ~ntario ~Our~ of'Appeal" in ~he ~ead case, supra., the cases would commonly refer to an objective and a subjective test of' resignation. ~he latter referred to ~he intention of' the employee as evinced by the circumstances surrounding the purported resignation and a~empted' revocation. We db not consider that the determination o~ the ~urt of Appeal cast doub~ on the need fbr ~he objective and subjective elements to be present in resignation cases ..................................... ('page -and- "Although we accept that employers can'Suggest resignation as an alternative to an employee without necessarily jeopardizing the voluntariness of'the decision to resign, we do not accept fihafi such resignations can be obtained'fihrough the exertion of' such pressure as. would lead a reasonable person to concIude that fihe empIoyee kid not resign voluntarily. While evidence-of intenfi may be seen as se~f~serving, where the evidence of' aI~ the circumstances are such that there is obvious pressure placed on an empIoyee who is vuinerabie to pressure under the circumstances, then it is dif'f'iculfi ~o accept that the resignation ref~ecfied' an act of' the empioyeets own f~ee will. ~hch a conclusion is reinfbrced when the empIoyeers first reaction to the events is that she has been fired.~ ('page fO) "~t is fihe position of the ~pIoyer thafi fihe grievor voiuntariIy an~ eff~ctiveIy resigne~, dounseI far the ~mp~oyer argued'that f Yom ~ctober, ~00~' onwards the grievor had no intent to worR on dhristmas Day, regardIess of' the consequences. On her analysis, the grievor made a commifiment for a family dinner withoufi ensuring thafi she couI~ get the day of'f', dounsei submitted that the grievor formed the subjective intent to resign on ~ecember ~9, 2003 when it was mad~ clear to her that she wouId have to wor~ the shift on C~ristmas ~ay if she couId nofi find a replacemenfi. Afl thafi juncture, the grievor advised" ~k. ~t~inson that she was considering resigning from her employment. P~om the perspecfiive o£ the EmpIoyer, the subjective intent t° resign was formaIIy communicated rio ~r. Atkinson during the teiephone conversafiion of December 23rd' during which the grievor advised' him that she was going to resign as she had been unsuccessful in finding someone e~se to cover the shift. It is the fhrther position of'the gmpIOyer that the grievor's subjective intent to resign is confirmed by the f~ilowing objective facGs: (i) the grievor faiIed to report for her shift on Christmas Day; ('ii)' the grievor, similarly, f~iIed to report far her shift on December f~th or fbr any of her shifGs in January, ~004~; ("iii)" the grievor did not tare any steps to contest the ~mployer's characterization of the end of her employment; and (iv) the grievor did not tare any action to rectifY the situation despite being aware Ghat, if she contacted M~. Atkinson and off~red to work the Christmas Day shift, she would' still have a job. Counsel fOr the ~mployer also argued Gha~ there is no evidence of duress, coercion or iii'ness sufficient to impair the grievor~s ability Go make a voluntary decision to resign. I~deed, she described Ghe grievor's decision as "measured" in contrast to a rash decision taken on the spur of the momenG. %' was asked tofind that the grievor was fully prepared to resign rather fJian work shifG in issue. I~ was counseI~'s assessment that the grievor took on a family commitment that she knew couId' not be reconciled' with her employment obIiga%ions. d'ounsel for the ~mpIoyer spent a considerabI'e Period-of~ time in closing argument referencing Ghe chronology of' evenGs beGween October and" December ~, 2003.' %t was her submission that ~r. AGkinson~s evidence should be accepted over thaG presented by the grievor. ~he argue~ that the f~rmer~s testimony was more credible and'reliable, particularly with respecG to wha~ occurred dUring f_he telephone conversations of November ~0 and' December ~, Counsel noted that the grievor was initially aware of'~. A~Rinson's expecGation that it was her responsibility to finda -JO- replacement for the '~hris~mas Day shift. As a consequence, the grievor took efforts to find- alternate coverage for ~hat day. Counsel for the '~mployer submitted that there was no reason to believe that ~Lr. A~kinson would'change his position or practice on Nbvember ~Oth and agree ~o himself assume the responsibility ~o locate coverage f~r the shift. ~he suggested' that, at most, he indicated that he was prepared to assist the grievor by allowing her to canvass employees on the full-time seniority list, despite the increased cost this would occasion. ~unsei observed that the ~ommunity crisis Centre is situate in a H'ospitaI in which hundreds of employees routinely have to work on ~hristmas Day. ~he commen~ed that it was unIi~ely, in the circumstances, that ~r. Atkinson would commi~ ~o finding a replacement f~r a relief' worker whose job it was to wor~ on holidays. ~n her words, ~r. ~tkinson~s 'version of the events "ring true~. ~ounse~ for the ~mployer asked' me to conclude tha~ ~. A~kinson had no reason to give the grievor an ultima~um on ~ecember ~2, ~003. On her analysis, he would' stii'~ have to secure coverage f~r all of' her subsequently scheduled shifts. ~e suggested that if' an ultimatum was given, it originated. with the grievor who threatened to resign if not excused f~om the ~hristmas ~ay shift. dounseI noted' that the grievor, in cross-examination, acRnowiedged she, in fact, had a choice. MOre specifically, she could have chosen ~o work and' thereby avoided any need'to end'her emplo~ent. ~unseI observed that the grievor, however, opted to resign as she was not prepared to change her family plans, finaI'iy, in terms of' assessing credibility, counsel asked me to consider ~s. ~arrah*'s evidence that the grievor toId her she thought it unfair, and'was going to resign, because she was required to work two Christmas~ in a row. ~ounseI reiterated'that, on the evidence, the grievor did no~ work on ~qlristmas of ~6~, as she secured a repI'acement for her shift. ~he, therefore, asserted' that the grievor was guii~Y of misrepresenting ~he history of' events ~o ~. Farrah during their teIephone conversation of.~ December 2frd'. Pbr ali of the above reasons, ~ was asked to uphold the resignatiOn and' to dismiss the grievance. ~n the aIternative, counsel submitted that this is not an appropriate case for reinstatement as there has been "a serious breakdown in the empioymen~ relationship". ~unseI advised that the P/mployer has Iost confidence in the grievor given her unwiIIingness to work the cover shifts she was hired for. ~n the further alternative, it was argued'~hat, if' reinstated, the grievor shouId not be awarded' any compensation. P~om the ~mployer~s perspective, the grievor was "guiity ora gross dereIiction ofher empioyment responsibiIities". Counsel cautioned that this type of behaviour ShouLd not be condone~ through a monetary awar~. LastIy, she noted ~hat ~he grievor continues to work f%II-time hours elsewhere and that the grievor has not sought out any additional employment of'a part-time natUre in an eff~r~ to mitigate her loss. ~he ~mpLoyer reIies on ~he- award in Re Weiies~ey den~rai ~OspitaI and ~ervice ~mployees ~nternational ~Uhion, Local 204 (~9§6)', 6i L.A.C. ('4th~ 43~ ('~ray) in support of' i~s position on -j~, the merits of the dispute. A good statement of the arbitral approach in respect of~ resignations is found' in the fbIiowing excerpt from the award: '~ When an empIoyee resigns, he brings his employment to an end. Nbthing in the parties~ collective agreement gives an employee who has resigned the right to uniiateralIy restore the employment relationship by subsequently revoRing his resignation. ~' cannot read such a provision into the collective agreement, lf"~he grievor did not eff-ec~iveiy resign, of' course, then the employer"s having treated his employment as at an end' cteariy amounted to a breach of the colIec~ive agreement. ~f' he did effectiveiy resign, however, then the empIoyer was entitled to treat his employment as at an end, there was no breach of' the coIIective agreement, and' this grievance must be dismissed. ~he threshoId issue, then, is simpIy whether the grievor effectively resigned his employment. fn ~e ~eadbw Park Nursing~Home, supra, at pages ~5'6, Arbitrator ~'randt aptly summarized the test applied by arbitrators in determining whether an employee has effectively resigned: T'he 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 ~tsubjective intention"' to resign but aIso that this intention be confirmed by some '"objective conduct~''. ~he concern that underlies this doctrine is that resignations frequently are off, red in the heat of' the moment or at times of' some personal stress and that'they may not express the empioyee~s real wishes, donsequentiy, arbitrators have Iooke~ at conduct over and above theexpression of a desire to resign empioyment in order to satisfy them- selves that the intention to resign is one which is continuing and' real.. ...... Arbitrators have recognized that a resignation must be a Voluntary and' conscious act in order to be effective. An employeests purported resignation wiIi no~ be effective if' tendered Under duress, for example., as may be the case when an employee is told she wiI'i be discharged' or otherwise punished' unless she resigns: Re Vernon J%lbilee HOspitai, supra, Re ~onestoga Coliege, supra, Re ~eacon Hili Lodge, ~tawa, supra. A purported resignation may also be ineffective if' anxiety, depression or o~her illness had induced in the employee a mental state in which he or she was unable to f~Orm the conscious intent to resign or to communicate his or her true intentionwith respect to resignation: ~e V~rnon Jtlbii'ee ~ospitaI and ~.~.N.~., supra, Re Workers Compensation ~oard., supra, and Re ~ompson ~nerai HOspi~aI, supra.'~' ('page ~ have reviewed and considered all of' the evidence and argument at some Iength. MY conclusions are as follows: (i) ~ accept that the grievor should have known that she woui'd' Iikelybe scheduled' to work on Christmas Day given that she did not work the Thanksgiving Day ~oliday. ~he wouI~ have known .of'the iikelihood' of this occurring upon %he posting of the October, .~003 schedule in Iate August; (ii) i' think that the grievor is likely mistaken in her evidence that she contacte~ Mr. Atkinson'ssecretary in early October, ~60~ and was then told the becember schedule had alread~ been prepared. ~f'she spoke to the secretary at that point, I would have expected her to speak to Mr. Atkinson about the confIict before NOvember. ~ note that he did not leave on vacation untiI October ~4, ~00J. I find' that the grievor was also in error as to when she contacted Ms. Quinn about the Christmas Day shift. ~he believed that the discussions with her co-worker were close to '%he Christmas period'. Mr. Atkinson"s notes, however, indicate that the grievor left him voice-maiI' messages on ~his subject on MOvember i~ and'Nbvember i8, ~60'~. Ultimately, ~' am left with the impression that the grievor ~id' not have a good' recolIection of the timing and sequence of' events; ('iii~ ~; am satisf'ied' that the grievor was aware of' Fir. Atkinson~s expectation that staff must arrange ~o find a replacement if' they are unable to work a particular shift after the schedule is posted. The evidence discIoses severaI instances where the grievor compiled with this expectation in the past; f accept that on ~°vember ~, f00~, ~r. Atkinson advised the grievor that it was her responsibility to find' a replacement for the Christmas Day shift. I't is clear that the'grievor subsequently took steps, aIbeit unsuccessful ones, in an effort to comply with this direction; (v) ~ have not been persuaded that ~r. AGkinson assumed the responsibility fbr securing a rep~acemen~ in his telephone conversation with the grievor of November 20,~003. f'he voluntary assumption of' such responsibility would have been inconsistent with his estabIished' practice and' contrary to the expectation he had previously communicated Go the grievor. ~he grievor, in her evidence, provided' no insight as to why ~r. Atkinson might have changed his approach. As noted'~ ~r. Atkinson denied that he ever agreed' to find a replacement f~r the grievor in respec~ of' her shif~ .scheduled' for Christmas Day. ~ consider i~ material ~hat his notes of the conversation of .November ~0th read', in part, "go dOwn fU~l-time list"'. ~ doubt that,. Atkinson would have referenced Ghat option if' he, as alIeged', told' the grievor he would find a replacement. ~r. Atkinson"s evidence on ~his point is consistent with the content of his note. ~ am also inclined to accept the ~ployer~s suggestion that, in the context of a hospital setting, it is unlikely that M~. Atkinson would commit to finding a replacement f~r a part-time empIoyee whose job it was to work on holidays; ('vi)' As noted-, it was the grievorrs evidence that ~. A~kinson ~old her on or about December i9, ~60~ Ghat she would have to work the dhristmas Day shif~ if she was unable to IocaGe a replacement. ~' question why ~r. Atkinson would'say this to her if' he had' previously assumed' the task of securing a replacement, as alleged by the grievor. ~ aIso note that the grievor~s accoun~ of wha~ ~. Atkinson told her on December ~9th is consistent with his past practice, · as described above; (~ii) ~ consider it material that, in the conversation of' '~ecember ~gGh, the grievor informed M~. A~kinson that she might have to resign if~ she was unable to find a replacement. ~ is the grievor who first raised the possibility of' a resignation, not ~r. A~kinson. '~' infer thaG she had considered that resignation might be a solu~ion to her probI~em surrounding ~he ~hristmas Day shift; ~viii) I prefer ~r. Atkinson~s account of' the ~elephone conversation of gecember ~, ~06f and, more specifically, his evidence that the grievor told' him she was electing to resign given her inability ~o find'a replacement fbr the ~hristmas Day hours. I have not been persuaded tha~r. Atkinson pressured the grievor to resign. I was not provided wi~h good reason why he would do so, especially since a resignation would complicate his life in view of the consequent need' to fill all of'the grievor"s scheduled' shifts. On balance, f think it more likely than no~ that the grievor said' she was resigning. ~Uch a statement would be consistent with her prior reference to resignation made on December 19th. AdditionallY, i' have no~ been able ~o isolate any hostile animus on the part of'Mr. Atkinson towards the grievor. I note, in ~his regard, ~hat he permitted her to call empIoyees on the full-time seniority list even though the replace- men,.of' the grievor with a fUll-timer would generate increased costs for the ~mployer. Ultimately, I am no~ satisfied ~hat Mr. A~kinson presented ~he grievor with an ultimatum of' work the shift or resign. ~ns~ead', ~ ~hink i~ was her decision ~o resign as she did not want to work on Christmas Day because she wished' to be wi~h her family; ("ix) ~f' the grievor felt that she was pressured'to resign, and was upset about that fact, ~' question why she did not confMont Mr. Atkinson about it at the time the alleged ultima~umwas delivered. ~ also question why she delayed grieving the matter until the end of' J~nuary, ~'~04. The grievor did not provide an adequate answer to these questions in her evidence. ~ no~e, further, ~ha~ the grievor was aware ~hat she could' have returned.to her job if' she had contacted Mr. Atkinson on or after December ~rd and adVised him that she had reconsidered' and' was prepared to work on dhristmas Day. This she did not do. ~n my judgment, all of the above are consistent with a decision on her part to resign; (x) ~f ~he grievor did not, in fac~, resign, ~ question why Mr. Atkinson asked' for a written conf~rmation of' a resignation. ~he grievor"s evidence as ~o her response ~o Mr. A~inson is somewhat inconsistent. yn cross-examination, ~he grievor testified tha~ she cou~dnot recall if' she said she would provid'e the confirmation, or not. ~he added that she migh~ have. In re-examination, the grievor asserted'~hat she d'i~ no~ offer '~to send in" her resignation. At another point in her evidence, the grievor .stated' that this was something she did not want to do. ~ do no~ think that anything turns on the f~ct that Mr. ~tkinson did' not wait ~o receive written confirmation bu~, instead, .prepared' and fOrwarded'a letter to the grievor on ~ecember ~frd confirming his understanding or,heir earlier ~iscussion. I can accept ~r. Atkinson's explana~ion tha~ he wan~ed ~o dOcument ~he matter in a timely fashion given the approach of'the holiday period; (xi) As previously mentioned, the grievor Gestified abouG a problem with high blood' pressure. ~t was her evidence thaG she visited' her d°c~or on December 2003 and' that he would' have given her a note to excuse her from work on ~ristmas ~ay. A suggesGion was made on the first day of'this hearing that medical evidence might be produced on this issue. None was forthcoming when the hearing resumed'. On ail of the evidence befbre me, ~ conclude Ghat medical problems did' not preciude the grievor f~om working the shifG on Christmas Pay. ~ndeed, it is clear that she workedon December ~', December December 24, ~ecember ~ and' for most of the month of' ~anuary, ~004 at the ~ancer Centre. More imporGantly, ~" find thaG ~he grievor'S decision not to work the shif~ in issue was unrei'ated to her medical condition. Rather, she refused' ~o work on Christmas Day because she had arranged~ to have dinner at her home that day with her family; (xii) I accept that the grievor was upset about what occurred on December f3,.~'60~. ~er evidence and that of'Ms. ~arrah and Mr. Atkinson is consistent on this poinG. ~he facG Ghe grievor may have been upset does not, however, mean that she IacRed the intent to resign on that day. fnsufficien~ evidence was presented to establish that %he grievor couI'd'not ~hink clearly aG the Gime she tendered her resignation. Ultimately, I am satisfied that her statement of resignation was a voluntary, in conGrast to a coerced, act. While the grievor's decision to resign 'may not have been a wise decision, and was one ~ha~ she came to regret, I conclude that it was fkeely made and' thaG it was nog Ghe product of dhress or coercion; [xiii} As previously mentioned', Ms. farrah tes~ified that Ghe grievor '~said she was going to resign because she wasn"t willing to work two ~hristmas'~ in a row, she thought it was very unf'air~. ~ consider this evidence significant for two ('~)' reasonsl ~irst, it reinforces the likelihood thaG the grievor, did GeII Mr. Atkinson she was going to resign. ~econd', it indicates that the grievor may no~ have been entirely fbrthrigh~ with ~s. Parrah. ~t seems clear that the grievor did not tell ~s. ~arrah Gha~ she did not, in fact, work on Christmas, (xiv) ~S. Parrah tesGified that she was casually asked by Mr. Atkinson~s secretary if~ she wou~d consider working on ~hrisGmas Pay. M~. ~arrah was unable Go recaiI if' this occurred' before or after December ~3rd. As a consequence, her evidence does not advance the ~nion~s case; (xv)' ~ have not been persuaded' that anything material turns on the fact the grievor has no~ returned' her id~ntif'ication and keys to the ~pIoyer. fG is clear on the evidence Gha~ she did noGhing concerning the end' of' her employment until she filed'a grievance on January ~, ~04'. After Ghat ~ate, the grievor retained' her id~nGification and keys on ~he advice of ~he Uhion, pending the uItimate resolution of' this dispute. ~he aforementioned i~ems should now be returned. As stated' in the jurisprudence, for a resignation to be effective there must be a subjective in~en~ion to resign accompanied by some objecGive cond%ct confirming that intention. in the final analysis, ~ accep~ the'Employer's submission Ghat bo~h elements were exhibited' in this case. ~he grie.vor~s subjective intent to resign is reflected by her statemenGs of 5ecember !~ and' December ~j, 200~ to ~r. A~kinson. On the former daGe, she advised 'Mr. Atkinson that she migh~ have to resign if unable to find a replacement. On the latter date, the grievor toId'him she was, in fact, going to resign because she had been unsuccessful in her efforts. ~his subjective intent was subsequen~Iy conf'irmed by the following objective conducG: (i) the grievor failed Go report fbr her shifG on Chris~mas Day; ('ii)' the grievor aiso f~i~ed~to repor~ fOr her shif~ on December 28th and fbr all of" her shifGs in ~anuary, ~004; ('iii~ the grievor d'i~ not take any steps to challenge the ~pioyer~s characterization of the end of her employment untii the filing of'her grievance on ~anuary 26, 2004; and (iv) the grievor did' not purpor~ to revoke the resignation or take any action to rectify ~he siGuation d~spite being aware that her job would continue to be there fOr her if she agreed to work -38- Christmas Day. Given my finding that the resignation was voluntary, and' not coerced, ~ must conclud~ that it was effective and binding upon the grievor. On my reading, the award in Re ~eacon ~iIi Lodge is factuaIIy distinguishable from the instant dispute, in that instance, 'the empioyee was presented' with a choice between discipIine and' resignation. Prom a review of the decision, it is understandable how that empIoyee couId reasonably believe she had no feasible option but to resign. R~re, the entire situation could' have been avoided had the grievor agreed'to work aii'or part of'her schedUled. shift. Her choice, however, was to resign, l' have been convinced that she was not coerced into doing so. The award in Re Prince Rupert Pishermen*S COoperativ~ Association invoIVed seasonal employees who did'not report for work when recalled from lay-of~. The case stands for the proposition that resignation shouIdonIy be inf~rredf?om the cIearest evidence of' an intention to quit. i have determined in the present dispute that the evidence strongly supports the conclusion that the grievor did, in fact, effectively resign from her employment at the Community Crisis Centre. in order to f~IIy address the significant amount ofevidence and argument presented and the complexities arising therefrom, and' given the seriousness of the issues raised', f have exercised the discretion under section 4~(9) of'the Labour Relations Act, ~5 to extend' the time fbr the giving of'this decision. Por ail of the above reasons, the grievance is dismissed. -39- ~ated at Windsor, On~ario this 3~. day of' ~c~ , ~.'0~'4. ~{.V. Wa~ters