HomeMy WebLinkAbout1976-0034.Murray.77-02-21.
CROWN ~MPLOYEEL '416 964-6426
GRIEVANCE SETTLEMENT
&OAR0
Between:
IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETiLEMENT BOARD
Miss S. J. Murray
And
Ministry'of Revenue
Before: D. M. aeatty - Chairman
Mary Gibb - Member
S. R. Hennessy - Member
For the Grievor
P. Cavalluzzo, Counsel
Golden-Levinson Barristers
For the Employer
Hearings
E. C. Farragher
Labour Relations Supervisor Ministry of Revenue
November 1, 1976
January 17, 1977
Suite 405, 77 Bloor Street West
Toronto, Ontario
Suite 405
77 Bloor Street Nest
TORONTO, Ontario
M5S lM2
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In the grievance she has filed with this-Board, Miss S. J.
Murray who was employed as a Clerk 3 General by the Ministry of
Revenue, complains that she was improperly dismissed from her
employment on December 15, 1975. By this grievance, Miss Murray
seeks to be reinstated in her former employment with full
compensation and without the loss of service credits. In
resisting her grievance, the employer countered that at no time
had it ever initiated any action to sever Miss Murray from her
employment. To the contrary it was the employer's assertion
that, on the evidence described below, Miss Murray had in fact,
on the day in question, voluntarily resigned from her position
in the Public Service.
The issue so joined, and prior to the adducing of evidence
before this Board, certain preliminary matters were settled
at the outset of the hearing. In the first place and while it
agreed it would not raise any objection as to the timeliness of
her grievance, the Ministry took the not unreasonable position,
in view of the prolonged delay on'the grievor's part in filing
her grievance with this Board, that, at the very least, it
could not be made responsible, should liability be established,
for any damages which might arise subsequent to the initial
hearing before this Board on November 1, at which the griever
had requested a further adjournment in these proceedings. In
addition, and given the nature of the issue between them it was
agreed, in the circumstances, that Miss Murray bore an initial
onus and therefore was obliged to lead her evidence first to
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prove that in fact she did not resign from her employment.
Put affirmatively, it was agreed by the parties that, as in
all dismissal cases where the matter is put in issue, and in
order for this Board to be properly seised of her grievance,
the grievor was obliged to establish a prima facie case of unjust
dismissal by proving, in addition to the existence of the
collective agreement, and the fact of employment, that her
termination was 'occasioned by a positive act on the part of
the employer. Re Best Pipe Company Limited L.A.N. February
1974 (Beatty); Re Chrysler Corporation of Canada Ltd. (1952)
4 L.A.C. 1291 (Cross). And see generally Re drown brothers Ltd.
(1973) 2 L.A.C. (2d) 347 (Weatherill)/ Re Baton Broadcasting
Ltd. (1971) 21 L.A.C. 7 (O'Shea); Re International Nickel Company -
of Canada Ltd. (19681, 19 L.A.C. 371 (Schiff).
Those preliminary matters aside, the parties adduced their
evidence with respect to the circumstances leading up to and
surrounding the grievor's purported resignation. From that
evidence, it is a matter of record that the grievor first
cormnenced employment in the Public Service In June 1970. From
her own evidence it would appear that because of certain
impediments and constraints she felt were being placed in her
career path, she decided in the spring of 1975, to seek a
transfer from her position in the Ministry of Community and
Sccial Services. Although initially desirous of obtaining a
. promotion from that MInistry, u ltimately on March 10, 19i5
she decided to accept a lateral transfer to a Clerk 3 General
position with the Ministry of Revenue. For the first six
in
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months of her tenure ih,that Ministry, Miss Murrsy's employment
experience was relatively uneventful. More specifically and
for the vast majority of the time between March 19, 1975 and
October 1, 1975, Miss Murray worked as Clerk 3 General in the
Accounts Payable unit in the Financial Services Section under
the supervision of Mr. J. Sloane. In that capacity she
apparently had what she perceived to be a good relationship
with Mr. Sloane and had received, in July, a positive employee
appraisal from him.
However, on or about October 1, 1975 her circumstances
began to change. On that date, as a result of a reorganization
and merger of certain portions of the Ministry's operations,
MiSS Murray's job functions were reassigned from what had been
the Financial Services Section to the Administrative Services
Section. For her part, as a result of a memorandum initiated
'by Mr. Guiffre, her Director, this reorganization resulted in
Miss Murray'being physically relocated from the ninth floor
under Mr. Sloane's supervision tom the first floor under a Mr. W.
Bonthron.~ Although, as described, this reassignment did not or
was not intended to affect her job duties in any way, .from
Miss Murray's perspective, this transfer was not perceived as
a positive or beneficial one. In the first place, it was her
claim, which was challenged by the Ministry's witnesses, that
as a result of this physical relocation she was obliged to work
in an environment in which there were several employees whose
habit of smoking cigarettes detrimentally affected her ability
to work. Miss Murray testified that because the physical
,
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environment on the first floor was much more confined she
suffered particularly from the smoking conditions and that she
repeatedly complained about it to her supervisors. Indeed, and
on this there is agreement, on October 1, 1975 the day she
was moving to the first floor, she had a verbal exchange with
Mr. Guiffre on the elevator about this matter which resulted
in the latter's issuing her a letter of reprimand for what he
regarded to be her rude and insolent remarks. Moreover and
in addition, Miss Murray testified that a major cause of her
dissatisfaction with- her transfer to the Administrative Services
Section stemmed from the fact that she was never able to
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establish a viable and. positive working relationship with
Mr. Bonthron. According to her, which he denied, Mr. Bonthron
constantly watched and monitored her every actjon, her comings
and goings and even her use of the phone. As well, she described
several occasions on which she felt Mr. Bonthron'had unfairly
criticized her,and on one occasion issued her with a letter of
reprimand for poor work performance. However and with respect
to this latter item, although at the hearing Miss Murray
disputed many of the allegations contained in it, it must be
noted, and indeed Miss Murray conceded, that she had done nothing
to challenge its veracity at the time it was issued.
In addition to her relationship with Mr. Bonthron and
her discomfort and dislike of the smoke caused by her fellow
employees, Miss Murray was also anxious and concerned about
the treatment she received with respect to the work assignments
she was given after her transfer to the Administrative Services
Section. In a word, Miss Murray felt she was being victimized.
Specifically' it was her complaint, which was denied by the
employer, that after two or three weeks under Mr. Bonthron's
supervision, almost two thirds of her work was taken out of
her area of responsibility without any explanation. In addition
she claimed that when she came back from her holidays in mid-
November she discovered that she had been removed entirely
from her former job and had been assigned to one in the
service area. Moreover she claimed that just as she was
acclimatizing herself and learning to enjoy that position,
she was, early in December, reassigned back to the ninth
floor to work again under Mr. Sloane's supervision. While
not disputing these latter assignments the employer's witnesses,
and particularly Mr. Guiffre,testified that they were bona
fide assignments dictated by the operational requirements and
needs of the Ministry. Indeed, it was Mr. Guiffre's assumption
that the reassignment of Miss Murray in early December to
work under Mr. Sloane's supervision would have been welcomed
by her, given her positive experience in working with him in the
Past.
In fact; however, Miss Murray's return to Mr. Sloane's
supervision proved to be a negative and cour$erproductive one.
In the first place, and as noted, Miss Murray had begun to
enjoy her work in the service area and was not particularly
anxious to be transferred anywhere. In addition and shortly
after she returned to the ninth floor her anxieties were
heightened when she discovered that the phone on her desk had
been removed. Indeed and although she was advised by Mr. Sloane
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that her phone had been removed only as part of-a general
reduction of telephone services in the Ministry and that there
was a phone on the adjoining desk which was available for her
use, her fears and insecurities were not al layed. Furthermore
her confidence in and relationship with Mr. Sloane was undermined
when in her view the latter had humiliated her in front
of the rest of the staff by unfairly criticizing her with respect
to certain aspects of her work.
It is in that context and against that backdrop, that
Miss Murray's anxieties were further aggravated when on
December 12, she was advised, through a clerical supervisor,
that she was "to report to the Director's office" later that
afternoon. Although the meeting had in fact been arranged
by Messrs. Sloane and Bonthron in order to review with Miss
Murray their appraisal of her performance over the preceding
six months, Miss Murray was not apprised of those facts until
later in the day. Accordingly and because of her fear of
what might transpire "at a meeting in the Director's office"
Miss Murray decided to seek out the advice of Mr. Lambert,
a staffing officer in the Ministry's personnel branch, in
order to determine what course of action she should pursue.
Ultimately, and after she discovered that Mr. Lambert was not
in his office, Miss Murray returned to her office where Mr. Sloane
met her and advised her of the true purpose of the meeting. In
the result and having missed the opportunity to review her
performance appraisal on that day, Mr. Sloane advised the grieVOr
that they could reconvene the meeting on the Flonday following.
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Again., according to the grievor, she was greatly perturbed
about the prospects of meeting with Messrs. Sloane and Bonthron
to review her employment performance. According to her, she felt
the appraisal was unusual, out of the ordinary and that in fact
her job was in serious jeopardy. Indeed,.so much did the
prospect of meeting with Messrs. Sloane and ,Bonthron bother
and worry her that on the Monday morning she decided that
rather than report to them, she would again seek out the
advice and counsel of Mr. Lambert. From all accounts this
meeting, which took place in a seminar room located near
Mr. Lambert's desk, lasted approximately an hour to an hour
and one half. However, and apart from their agreement as to
the duration and place of'the meeting, the evidence of Miss
Murray and Mr. Lambert as to what transpired at that meeting,
is, on most material points, entirely contradictory.
For her part, Miss Murray claimed that she went to
see Mr. Lambert to seek his advice as to what she should do.
She testified that when he saw her, he initially laughed and
queried whether "they" knew she was with him. According to her,
after they had talked for some period of time she said to Mr. Lambert
that she guessed that the only thing she could do to extricate
hersel~f from.her difficulties in her job would be to resign.
She testified that the only reason she raised this possibility
was in the hope that he would offer some alternative possibilities
that she might pursue. However, according to her, when she made
this suggestion he said that he agreed that would be the best
thing she could do, that if she didn't leave she would Abe
fired, and that because she failed to report for two scheduled
meetings she would be disciplined and would be "receiving all
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kinds of re,pistered letters". Furthermore, she-testified that
immediately after she raised the possibility of resigning,
Mr. Cambert rushed out of the room and secured a piece of
paper on which she wrote out her resignation. Indeed she
testified that all the while she agonized over whether she
should complete the resignation, Mr. Lambert, who is by no
means a physically diminutive person, stood over her in an
overbearing fashion. In short, according to Miss Murray,
Mr. Lambert frightened and subtly coerced her into preparing
her letter of resignation, which she claimed she signed against
her will. Moreover, it was her evidence that after she had completed
her letter of resignation and as she was leaving the office,
Mr. Lambert cautioned her not to change her.mind. Miss Murray
tesified that she took this to mean that she could not and
would not be permitted to alter her decision.
The description painted by Mr. Lambert with respect'
to what transpired at that meeting is substantially different.
He testified that this was the third occasion on which he had
seen Miss Murray since November 18, 1975 and that he was
therefore fully familiar with her circumstances. He claimed
that for most of the meeting they reviewed Miss Murray's previous
experience in the Ministry and,.as in the previous two meetings,
considered a variety of alternatives that she might pursue to
alleviate and extricate herself from her difficulties. Specifically,
according to him, they considered the two possibilities of Miss Murray
either obtaining a transfer out of her present position and/or
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returning to-her position with Mr. Sloane with the intention
and expectation that things could be worked out between them. Mr. Lambert
testified that Miss Murray categorically refused to consider
the latter alternative and that he advised her, as he had in
the past, that she would unlikely be able to secure a transfer
until such time as her work record improved sufficiently so as
to make her an attractive applicant to some other supervisor.
In the result it was his evidence that it was in this context,
of his having advised her tha't he could not simply "arrange"
a transfer for her and of her being adamant in her refusal to
return to Mr. Sloane's section, that she offered the suggestion
that the only other possible route out of her difficulties would
be to submit her resignation. He testified they discussed this
possibility very briefly and then he went out and secured a
piece of paper on which her resignation could be written. He
claimed that subsequently he left the room on two further
occasions to check a calendar in order to select an effective
date for her resignation and to secure an application for her
to obtain the benefits to which she was entitled under the
Public Service Superannuation Act. Moreover, it Was Mr. Lambert's
evidence that at no time did he suggest she would be disciplined
or discharged if she did not resign, nor did he caution her
not to change her mind. In short Mr. Lambert emphatically
denied that he in any way pressured or influenced her in her
decision to resign. To the contrary he claimed that that decision
was hers alone, was made in a calm and deliberate manner and was
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the natural,consequence of their previous discussion in which
the options of a transfer and a return to her section had been
effectively foreclosed. Indeed it was his evidence that although
at the outset of the meeting Miss Murray was visibly upset
and in an emotional state, by the conclusion of the meeting
and after she had effected her resignation she was calm and
relieved.
At the close of this encounter and following
Mr. Lambert's advice, Miss Murray returned to her home. It was
Mr. Lambert's feeling, which Miss Murray apparently shared, that
no useful purpose would be achieved by her returning to work
either that day or indeed any other day prior to December 31,
the date he proposed as being the effective date of her
resignation. However, according to her evidence, within half
an hour after she had returned to her home she realized that
in fact "she wanted to return" to work, but because of
Mr. Lambert's parting comment she "didn't think she could change
her mind". In the result she did nothing further with respect
to her resignation on that day. Indeed on Tuesday December 16,
rather than immediately pursuing her avowed intention to
return to work, Miss Murray decided, for reasons never explained,
that she would first attend a choir practice of the Ontario
Public Service Choir, of which she was a member. In fact
Miss Murray testified that it was only after this practice was
completed that she decided she would approach the Deputy Minister
to see if her resignation "could be rescinded". However and
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although she was able to meet with the Deputy Minister for
approximately an hour to explain the events described above,
nothing by way of a substantive solution to her problems was
generated at that meeting. Indeed, ultimately the Deputy Minister
advised Miss Murray by letter dated.January 6, 1976 that he
was unable to find a position elsewhere in the Ministry that
would be suitable for her and that accordingly he had decided
to accept, with regret, her decision to resign.
It is against that description of events that this Board
must determine whether in fact the grievor resigned her employment
on December 15, 1975,0r whether, as she claims, she was dismissed
without just cause. In making this determination we are mindful
that arbitrators have consistently perceived and characterized
the right to resign or quit one's employment as being peculiar
and personal to the employee. That is to say,~ we recognize
that the right of resignation is a mechanism which is available
to the employee to-terminate the employment relationship and
it is not open to an employer to deem an employee to have quit
or resigned from his employment over the latter's protestation
Re Canadian Gypsum Co. Ltd. (1968) 19 L.A.C. 341 (Weiler);
Re Northern Telephone Ltd. (1968) 19 L.A.C. 129 (Pa2mer). PUt
simply, we are in agreement with the principle, enshrined in the
arbitral jurisprudence in the private sector, that an employee
can be found to have quit his employment only when he or she
voluntarily comes to and acts upon the intention to sever or
terminate the employment relationship. Re .%cfiillan Blcedel
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of Guelph (&~rnJ; Re Precision Valve ICamdaJ Ltd. f1971J
23 L.A.C. 231 fSi~nql, or an attempt to pressure his employer
to accede to certain demands Re XemptviZle District Rospital
(19751 8 L.A.C. (2dJ 144 KJ’COTVIO~J, than.an intention to quit
one's employment. In short, the erection of such a framework,
by which the intention of an employee may be assessed, ensures
that only expressions and conduct on the part of the employee
which reflect a considered and deliberate decision to sever one's
employment, will be found to embrace an intention to resign.
Against those principles it is possible to and arbitrators
have distinguished between two factually unique, though
conceptually related circumstances in which an employer may claim
that an employee has quit his employment. In the first of
these the employee does not expressly declare her intention
to quit her employment and the arbitrator is asked to draw that
inference from a certain course of conduct or behaviour. such
as a prolonged absence, which was pursued or adopted by the
employee. A review of the reported awards in the private sector
reveals that in virtually every such case arbitrators have
recognized ~that standing alone, and without more, conduct, such
as a prolonged absence,is ambivalent and ambiguous in its purpose
and have, accordingly, refused to draw the inference that by
such conduct the employee intended to quit her employment.
By way of contrast, in the second category of cases, in
which the employee has expressed some intention to sever his or her
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Industries Ltd. (1974) 5 L.A.C. (Zd) 337 (Weiler'). go characterized,
it is clear, and a review of the arbitral jurisprudence in
the Private sector COnffraJs, that ultimately the task confronting
an adjudicator in settling the issue of whether an employee has
resigned her employment is to ascertain the true intention
underlying and motivating the employee's behaviour. Re University
of Guelph (1973) 2 L.A.C. (2d) 351 (Shime); Re Canadian Gypsum
co. Ltd. (1968) 19 L.A.C. 341 (Weller). Moreover in plumbing for
the actual intention of the employee, we share and subscribe
to the principle which has, from the earliest awards, been
uniformly adopted in the private sector that an act of resignation
embraces both subjective intention to leave one's .employ and some
objective conduct which manifests an attempt to carry that
intention into effect. Thus, and as one board expressed it:
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.
Re Anchor Cap & CZosure Corp. of Canada Ltd, 119491 1 L.A.C. 222,223
(Finkekznl. The rationale and purpose for constructing such a
dual standard should be obvious. Very simply, from their experience,
arbitrators have recognized that in certain contexts a
simple assertion of resignation may reflect more a sense of
anger or frustration on the part of the employee, Re U~ttvers~t:~
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I 0 employment,.‘arbitrators have been much more inclined to accept
such an expression as embracing the true intention of the
employee and have come to the ronclusion that he or she did
in fact intend to resign his or her employment.
In these
circumstances, and assuming that the expression by the employee
does not simply reflect the employee's anger or frustration,
(Re University of Guelph (Supra); Re Precision Valve (Canada)
Ltd. fsupra)) or an attempt to induce the employer to concede -
certain demands (Re Kemptville District Hospital (Supra)) the
usual issue between the parties is whether there iS any confirmatory
conduct on the part of the employee which satisfies the "objective"
element of the dual standard noted above and which manifests
a continuing subjective purpose of quitting her employ. Re sun
Oil co. Ltd. (1968) 19 L.A.c. 365 (Weiler). However in the
circumstances of this case, because of the grievor's allegation
that Mr. Lambert pressured and subtly coerced her into resigning
her employment, it is manifest that if the employer's claim is
to prevail we must-satisfy ourselves that both the "subjective"
and "objective" elements of the standard referred to above
have been satisfied and support the conclusion that the grievor
voluntarily intended to sever her employment.
Applying this analysis to the circumstances of her case,
we would note, at the outset, that in sharp contrast with
virtually all of the reported awards in the private sector, Miss Murray
both verbally, and in writing,expressed her intention to resign
0
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from the Public Service. In such circumstances, and assuming i- .
for the moment that such an expression was not secured by some
act of duress, misrepresentation, fraud, undue influence, etc,
on the part of the employer, or the result of some mistake on the part
of the employee, we are of the.view that, apart from any other
conduct on her part, such a verbal and written expression of
an intention to resign, taken together with her application for
the return of her contributions towards her superannuation benefits,
is clear and convincing evidence, satisfying both elements of the
test noted in the Re Anchor Cap & CZoez&e Corp. ~of Canada Ltd.
lSupml decision, of a continuing subjective intentlon to
resign from her employment. That is to say, in the absence of
any evidence that she was induced to prepare ar sign those
documents under duress or under some mistaken assumption as a
result of some misrepresentation or fraud or undue influence that
was practised upon her, we believe that such a written resignation
should be taken, on its face, as representing her actual and true
intention to quit her employment. Such a conclusion not only accords
with connnon law traditions as to the meaning and effect of signed
documents generally, fLrEstm-pi V. F. Graucob ~td. fig33 2 K.B.
3941, but as well conforms and coincides with what little arbitral
opinion has considered the issue. Thus and except where it was
made conditional in nature, (Re KemptviZZe district HospituZ
C&pm)) arbitrators have, in the absence of such extenuating
circumstances as those noted above, accepted a written resignation
as reflecting the actual intention of the employee who prepared
and signed it. Re Northern: Electric Co. Ltd. (19691 21 L.A.C.
53 (Hanmhml. Put somewhat differently, against the analysis
.
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described above, we are of the view that arbitrators may
and have properly regarded a written resignation as itself embracing
the necessary subjective and objective elements of an intention
to voluntarily sever one's employment. Thus, and as noted by
one board of arbitration:
. . ..the earlier decisions consistently
hold that once an expressed intention
to quit is given, a further objective
act such as leaving work early; not
reprting for work the following shift;
or some other similar act is carried
out consistent with the expressed intent.
What the minimum requirement for such an
objective act is we are not certain but
one recent decision involving Re U.A.W.,
Local 1535, and Northern Electric Co. Ltd.
(1969), 21 L.A.C. 53 (Hanrahanl, found that
an expressed wish to quit followed four
hours later by completing termination
Papers in the personnel department was
sufficient. This seems reasonable while
anyone may utter a statement in an outburst,
or due to the heat of the moment, he or she
will invariably think twice before placing
his or her signature to a document. See
the Frigidaire Products case referred to above.
Re Precision Valve (Canada) Ltd. (1970) 23 L.A.C. 131, 137 ,/Simmons).
In short and whether one concludes, as with signed documents
generally, that a written resignation accurately reflects the
actual intention of the signatory, or whether one characterizes
such a written and signed instrument as satisfying the arbitral
search for some objective conduct which manifests a continuing
subjective intention to quit, the conclusion follows that such
written resignations must, in the absence of any of the factors
noted above, be given effect to.
Moreover, in the circumstances of this particular grievance,
we are satisfied that the written resignation prepared by
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Miss Murraycan not be vitiated by any of the legal principles
by which persons who sign such documents would be permitted
to disavow them. Put at its simplest and against the grievor's
particular allegations we do not believe that the written
resignation she prepared and signed was the result of any
subtle coercion, pressure, duress, or influence applied by
Mr. Lambert. In more blunt terms we prefer, and for a variety
of reasons, Mr. Lambert's description of his meeting with the
grievor on December 15. In the first place and as the grievor
herself would have to concede, had Mr. Lambert behaved on
December 15 as she would now have us believe, it would have
been totally out of character from his past experience with
her. That is, in her evidence Miss Murray testified that she
went to seek his advice on that day precisely because from her
previous meetings and experience with him she had learned to
trust him and had come to regard him as a friend. Moreover,
there is nothing in her evidence which would indicate that on
those two previous~occasions she was misguided, mistaken or
misled by so regarding him. Accordingly and to now suggest
that Mr. Lambert, for no explained reason, sought to subtly
induce her to resign from her employment is not only completely
at odds with her previous experience with him but is devoid
of any rational, logical or factual explanation. Moreover such
a description of Mr. Lambert's actions is completely at odds
with his own testimony as to what transpired at that meeting:
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In addition to being completely inconsistent with her
Previous experience with him, and without logical or factual
foundation, the grievor's evidence that her resignation was
not a voluntary act must be rejected, in the face of Mr. Lambert's
conflicting testimony, and for several additional reasons.
In the
first place, the grievor's evidence as to what transpired at
that meeting was incomplete and faulty in several respects.
For example, until confronted with it in cross-examination
the grievor could not even recall having signed the application
for the return of her contributions to the superannuation plan.
Moreover, we would note that the evidence before us strongly
suggests that the usual assumption that a person can be expected
to think much more carefully before signing a document than
before uttering some expression is in fact applicable to this
grievor. Thus, for example, when Mr. Guiffre placed before her
the letter of reprimand following their verbal altercation on
the elevator and asked her to sign to acknowledge receipt of that
document she refused to do so. That fact, which was not controverted
by her, strongly suggests that had she not intended or desired
to do so, Miss Murray was fully capable of withholding her
signature and refusing to prepare, let alone. sign any resignation
that was thrust at her.
In addition, we prefer Mr. Lambert's description as to what
transpired at the meeting of December 15 and accept his assertion that
her resignation was a voluntary and intentional act on her
part because, in sharp contrast with Miss Murray's, it has a
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sound and rational basls in both logic and fact: Thus we would
note on Mr. Lambert's and indeed on her own evidence that the
grievor had,since the date of her transfer to Mr. Bonthron's
unit,experienced a dissatisfaction with her working environment
and had sought, on at least two previous occasions, a transfer
out of that section. Such conduct, alluded to by other
boards of arbitration (e.g. Re Outboard Marine carp. of Canada
Ltd. (1970) 21 L.A.C. 270 M.imel) is not only consistent with
the attitude of a person who, denied such an opportunity to
transfer and given such a negative experience, might determine
to sever her employment, but as well is consistent with Mr.
Lambert's assertion that the option of resignation was discussed
on December 15 only after he had again advised her that it was
not possible for him to arrange a lateral transfer out of the
unit and after she had confirmed she would not return to her
position. Moreover, the explanation that the grievor's
decision to resign was prompted, as her own evidence confirms,
after she had exhausted all other possible alternatives, is also
corroborated by the letter she received from the Deputy Minister
in which he advises that it is because he is unable to find a
suitable position, and not because he has rejected her claim
that she was pressured into resigning, that he has decided to
accept her decision to resign. In short from Mr. Lambert's evidence,
from her previous attempts to transfer out of the section and
from the Deputy Minister's letter we are satisfied that it was
because there were simply no other available means to resolve
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her dissatisfaction and difficulties with her supervisors and .
not because of any pressure or coercion, that Miss Murray
submitted her written resignation.
Finally we believe that the grievor's own conduct immediately
following her submission of her written resignation confirms
that that document accurately reflects the grievor's true intention.
Put somewhat differently, we believe that the griever's own
conduct immediately following the meeting with Mr; Lambert
itself provides corroborating evidence of a continuing subjective
intention to resign from her employment. In the first place, if as
she claimed, Mr. Lambert had pressured her into resigning and if
the document she submitted was not a voluntary expression of
intention on her part, it is difficult to understand why, when
she returned home and realized within half an hour that she
wanted to return to work, she didn't immediately do so. Her
explanation that she interpreted Mr. Lambert's statement "not to
change your mind" to mean that she "couldn't" change her mind is
one which simply doesn't follow from any rational or reasonable
construction of those words, even assuming they were spoken, and
strains our credulity. Moreover and if as she testified she realized
she wanted to return to work and that she had been frightened,
pressured and coerced into resigning, it is incredible that
prior to bringing these allegations to the Deputy Minister,
she would spend the next morning at a practice of her
choir. Simply put, such conduct hardly reflects the
actions of a person who feels aggrieved at having been coerced
and pressured into resigning her employment. In addition
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her assertion as to the involuntary nature of her resignation
simply does not coincide with her admission, in cross-examination,
that even when she'met with the Deputy Minister she never
suggested she would return to her former position with Mr. Sloane.
In short and against that admission and together with her conduct
early that day, we think it,clear that even on December 16 the
grievor was manifesting, by her behaviour, a continuing
intention to resign her position while simultaneously exploring
the possibilities of securing alternate employment.
In the result, we are satisfied that her preparing and
signing a written resignation and her applying for her
superannuation benefits was a voluntary and deliberate act
on her part which did reflect a true intention to resign from
her employment. Put differently we accept Mr. Lambert's assertions
that at no time did he ever pressure, unduly influence, or coerce
the grievor into resigning, advise her that~if she didn't she
would be dismissed, or caution her that she must not ever change her mind.
To the contrary and as we have indicated above, we believe the
grievor's decision to resign her employment was a deliberate
and voluntary one which was the logical culmination of several
months of dissatisfaction with her employment situation and with
her inability to secure a transfer from it. In short and having
accepted the evidence of Mr. Lambert as reflecting an accurate
portrayal of their meeting on December 15, there is nothing,
in our view, which would vitiate our conclusion that the written
- 23 -
resignation.prepared by the grievor was a volunfary and
consensual act on her part. In that regard we would note that it was
Mr. Lambert's evidence that while the grievor appeared to be in
an emotional and upset state when she initially arrived at
his office,at the time she actually prepared and completed
her resignation she appeared calm and relieved in her decision.
So characterized we must conclude that the grievor did
in fact resign from the Public Service within the meaning of
s.19 of the Public Service Act. Having rejected her assertion
that her resignation was coerced or extracted from her under
pressure and there being no allegation that she attempted to revoke
that decision pursuant to the procedure set out in s.19 of the
Act or that the Deputy Minister improperly refused to accept
a withdrawal of her decision, we must, for the reasons given,
dismiss this grievance.
Dated at Toronto this 21st day of Februarv 1977.
dJ r/l MB- I - eatty
Chaihan
I C*nC”I
M G‘bb
Memblr
See Addendcn
3 R
Member
Hennesy
ADDENDWl - S. R. HENPIESSY, FEBRUARY 21ST, 1977
In light of the circumstances in this case I have, most
reluctantly, joined in the decision of this panel of the Board. Fly
reluctance does not relate to the cataloguing or application of the
criteria used by arbitrators in this difficult and sometimes frustrating
area of arbitral decision making. My concern relates directly to the
manner in which the grievor's cessation of employment was brought I
about.
This panel has summed the problem up very succinctly when it
referred to the contradictory evidence given by the grievor and the
staffing officer concerning the meeting on December 15th. This panel
concluded that, for various reasons, "the written resignation prepared
and signed was hot7 the result of any subtle coercion, pressure,
duress or influence applied by Mr. Lambert".
I, personally, have great difficulty with this conclusion given
the circumstances of that meeting. I must however, agree with this
panel's final disposition of this case when one views the grievor's
somewhat peculiar conduct in the days following the December 15th
meeting.
It is in light of the circumstances surrounding this meeting,
that I would like to raise a responsibility which I feel has been
overlooked. My corrunents should not be taken as specific criticism
but as illustrative of a type of conduct which is, in my opinion,
completely at odds with the obligations implied in a fair and equitable
employer/employee relationship.
An employee, as in the circumstances of the December 15th
meeting, has great potential for abuse. Whether it is done knowingly
or not the employer holds and may'exercise a great deal of influence
in this type of situation. The employee in many cases is, at this
time, making one of the most important decisions of his or her working
life. It is a decision which calls for rational and calm reflection,
if that is indeed possible. At the very least, it calls for a thorough
and impartialreview of the circumstances which neither of.the parties
directly involved, for usually conflicting reasons, are in a position
to do. Certainly in most of the cases the employee is either reacting
to external stimuli or is emotionally upset.
This sort of situation, I believe, calls for a cooling-off
period in which the employee should be allowed an opportunity to or
be instructed that he/she should seek outside counsel, either from
the bargaining agent, if any, or a friend, colleague or spouse. Such
a restrained and understanding approach to the quit or resignation
case would resolve most, if not all of these sort of problems. It
would, at the very least, reduce the upsetting consequences which
flow from the abuse of a relationship which should provide one of the
most satisfying aspects. of an individual's life.