HomeMy WebLinkAbout1979-0128.Moore.80-07-10IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: Gregory Lee Moore
and
The Crown in Right of Ontario
Ministry of Correctional Services
Before: Edward B. Jolliffe, Q.C. Vice-Chairman
George A. Peckham Member
Kenneth Levack Member
For the Grievor:
George Richards, Grievance Co-ordinator
Ontario Public Service Employees Union
For the Employer:
J. Benedict, Manager, Staff Relations
Human Resources Management
Ministry of Correctional Services
Hearings: May 22, and June 4, 1980
Suite 2100, 180 Dundas St. W.
Toronto, Ontario
The grievor in this case served for slightly more than nine
months as a Correctional Officer 1 in the institution at Milton known as
"Maplehurst." His grievance, dated May 8, 1979, is as follows:
I was coerced into signing a resignation
by the Deputy Superintendent Mr. J. Leithead
as of 1730 p.m. on May 4th, 1979.
The "settlement required" is stated to be:
Reinstatement as CO 1 at Maplehurst
with no loss of seniority as of
May 4th 1979. Acceptance of rescinding
o'f resignation.
On June 19, 1979, notice was received by the Grievance Settlement
Board from the OPSEU requesting a-hearing and the Employer was notified accordingly.
The case eventually .came on for hearing May 22 and June 4, 1980.
In this case there is no suggestion on either side of misconduct
on the part of the grievor. On the contrary. five appraisals during his
nine months of service reported favourably on "attendance", his "punctuality,"
and on "dedication to job, i.e. motivation, interest, loyalty" and “co-operation
with management and staff."
On the other hand, the five appraisals (Exhibits 1 to 5 inclusive)
gave low ratings, either "C", "6" or "D" in relation to certain aspects of
ability and performance, particularly those described as "communication skills"
and "initiative." The fifth appraisal, dated May 3, 1979, was even more
unfavourable than the fourth, dated February 9.
In these circumstances, it was open to the Employer to consider
releasing the employee under subsection (5) in section 22 of The Public
Service Act:
(5) A deputy minister may release from employment,
any public servant during the first year of
his employment for failure to meet the requirements
of his position.
It is clear from the evidence that the Deputy Superintendent,
Mr. Leithead, intended on May 4 to release the grievor within a few days,
and he so informed the grievor. However, no release was actually processed.
During the course of a meeting on May 4 the grievor wrote and signed a form
of resignation. Addressed to "Mr. Roberts" (the Superintendent at.Maplehurst)
it reads as follows:
Owing to personal reasons, I wish to submit
my recination'(sic) as a correctional officer
in the Maplehur~complex effective immediately.
The case for the grievor is that the resignation was brought about
by coercion or undue influence, that he attempted to withdraw it by telephone
about two hours later and again attempted, in writing and in an interview on
May 8.,to rescind it. In the latter attempt he gave his reasons. Also
addressed to Mr. Roberts, it was in the following words:
I,was empioyed as a Correctional Officer'
at the Maplehurst Complex Unit #3 from
July 31, 1978 until May 4th 1979. On
May 4th,1979 I was called at 1600 HIS. to
a meeting with Mr. J. Palmer Sr. Assistant
Superintendent A.T.C. and Mr. ,J. Leithead
Sr. Deputy Superintendent.
During this meeting, I was coerced and
badgered into submitting my resignation.
I was told that if I did not sign the
resignation then I wduld be fired and
be given a poor referral (reference) for
any other employment. My requests for a
Union Representative or the presence of
! my Supervisor Mr. R. Fraser, C.0.3 who
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was on duty at the time were denied. For
these reasons I hereby rescind (resind)
my resignation as of May 7, 1979.
Immediately below the above statement appears an acknowledgment
by Superintendent Roberts:
Presented to the undersigned at 15.30, E/5/79. / Mr. Moore informed that letter of resignation
is not "revokable" and informed that date of
resignation amended to 18/S/79, thereby giving
Mr. Moore 2 weeks pay - but not required to
attend for duty.
A. J. Roberts Supt. 15.40 E/5/79
The document of May 8 was witnessed by two Union Stewards,
Messrs. W. Hirschfelder and W. G. Gillies, as well as Mr. Leithead.
The employer's case is that the grievor voluntarily signed
a valid resignation, that there was no coercion and that acceptance of the
resignation (as an alternative to release) made it irrevocable.
Much of the evidence at the hearings on this case related to the
five appraisals completed between September 14, 1978, and May 3, 1979, by a
Mr. Ellis, superintendent of the day shift in Unit 3 at Maplehurst,who discussed
all of them with the grievor. Mr. Ellis was not called as a witness, but the
testimony of the grievor himself and of Mr. R. Fraser (the corporal who directly
supervised the grievor more often than others) has been relied on as indicating
that the appraisals, notably the last appraisal (of May 3, 1979) were unfair,
inconsistent and generally incorrect. The grievor signed all except the last,
with which he strongly disagreed, pointing out that it was more unfavourable than
the fourth appraisal, although no complaint had been made to him about his work
in the interim. He had not at any time grieved against an appraisal under
paragraph (b) of subsection (2) in section 17 of The crown Employees Collective
Bargaining Act, but he probably lacked the opportunity to do so between May 3,
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when Mr. Ellis showed him the fifth appraisal, and May 4, when he was called
to a meeting with Messrs. Leithead and Palmer, the meeting at which he signed
a resignation.
'.
The problem connected with the appraisals issue is that the
validity of the five appraisals is not really before this Board for determination,
either by way of an express grievance or otherwise. The most that can be said
is that a new employee is entitled to expect continuing supervision and guidance
or "coaching" as well as written appraisals at regular intervals, a reasonable
requirement if the employee's potential contribution is to be fully realized.
The real issue in this case is whether the,resignation of May 4
was "voluntary" in the true sense of that word. Findings must be made from the
evidence on that issue. In doing so, itis necessary to compere the evidence
of the only witnesses who testified as to what was said and done at the meeting
of May 4; Mr. Moore and Deputy Superintendent Leithead.
The grievor's version is to the following effect. On May 3 Mr.
Ellis had shown him the fifth appraisal.Of 12 ratings he received four "A"
(very good) one "B" (good) one "C" (acceptable) one "C-" and five "D"
(unacceptable). Mr. Ellis appended the following comments, which were somewhat
similar to those he had made in January, but quite different from those in
February:
Mr. Moore is a very willing worker; moreover, as noted
above he is not fulfilling the requirements of the
position in a number of important areas; as such, and
if his performance does not improve in these areas we
will not be able to make a recommendation for appointment
to permanent staff.
Mr. Moore was "surprised" and did not sign the appraisal,
considering it to be unfair and incorrect. Mr. Ellis told him he would be
called to see Assistant Superintendent Palmer the next day.
The meeting began about 4:30 p.m. on May 4. The only persons
present were Deputy Superintendent Leithead, Mr. Palmer and the grievor.
According to Mr. Moore, his superiors had reports before them, including
the appraisal of May 3. Mr. Leithead said the grievor was not doing very
well. Mr. Moore then asked "for a union man." The stewards were not on
duty and "the only one they could think of was Fraser." The grievor "wanted
him to vouch for me but it seemed like they didn't want anybody there...They
just:passed it by. They went on saying I'd be released on Monday because I
wasn't meeting the requirements."
According to the grievor, he then asked "what about a recommendation
for a job? Mr. Leithead said I'd have a better chance for a recommendation if I
signed off instead of getting released. Nothing was said about a right to grieve.
So I asked Mr. Leithead how should I word it? He said: 'Say you want to
resign because of personal problems..'"
The grievor also testified that he did not wish to resign, "but ,
I felt I was under pressure and didn't have anyone to stand up for me---so what
could I do? I had enjoyed my job---yes."
There was some talk about the May appraisal, with mention made of
the "D" ratings. 'I told them I had discussed it with Ellis and told him it was
unfair . . . ..I'm not quite sure how they reacted.... I just asked some questions about
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money on release... I had a uniform issued by the Ministry. They said I could
bring it in the following week -- Monday or Tuesday. I asked whether I should
finish the shift or leave immediately. They said to finish if I wanted to.....
There was no opportunity given to think it over except at the meeting --- a
minute or two of silence....... There was no suggestion I should consult any
one else."
Mr. Moore said he gave them the resignation at the end of the
meeting and had no copy. "I felt sort of bewildered. I went home after
getting some stuff from the unit."
Under cross-examination there was no material change in the.
grievor's version of the meeting, but he used slightly different language
and added a few details. He could not recall the opening statement, but Mr.
Leithead asked a number of questions and advised him he would be released, the
process to be started Monday, May 7. The appraisals were referred to but
Mr. Leithead did not go through each one. "I as,ked him which would be the
better way to do it. He said it would be better to sign off and get a
recommendation -- he couldn't do that if I were released. I asked him what to
do and he said to resign, so I asked him how to word it."
The grievor said he understood the resignation meant he would no
longer be an employee -- immediately. "I was upset by the way it was handled.
I was denied help --- nobody there from the Union.... I' didn't ask for time to
think about it." He denied that previous appraisals had influenced his resignation.
The grievor said he understood "coerced" to mean "under pressure."
He had been "badgered" because he was told to "sign off or be released."
The grievor also said he did not receive a recommendation and had not
requested one, but obtained other employment. He is 30 years of age and left high
school 10 years ago, since which he has quit a job more than once to take a better
job.
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Mr. Iain Leithead, Deputy Superintendent at Maplehurst since
the spring of 1979, was the only witness called for the employer. His version
of the meeting held on May 4 may be summarized as follows:
The purpose of the meeting at 4:30 p.m. on May 4 was to inform
Mr. Moore that "we would release him, based on performance appraisals."
Assistant Superintendent Palmer was also present. The most recent appraisal,
i.e. that of May 3, was shown and discussed. "I explained that on the basis
of the appraisal it was my intention to release him for failure to perform
his duties satisfactorily."
According to Mr. Leithead, his announcement was followed by a
question: "Mr. Moore asked what he could do -- what were the options? I
suggested resignation was an option. He asked what the differences were. We
indicated that if a future employer inquired if he had been released, we'd have
to say so. If he had resigned, we'd say so. He then indicated he would resign.
He wrote it in the office and handed it to me. He asked me what he should say.
We said it's up to you. We gave him a pad of paper. We suggested 'personal
reasons.' There was some further discussion about the return of Ministry
property. I believe it was Palmer who said he should leave and not continue
his shift. We shook hands with Mr. Moore. It had been quite amicable. He
didn't show emotion during the meeting. He left about five or five ten."
Mr. Leithead reiterated that he didn't detect signs of stress.
The grievor "wasn't anxious - quite amicable".
There was an objection to questions as to whether the grievor had
requested the presence of another party. The basis of the objection was that
Mr. Moore had not been cross-examined on the point. After an adjournment for
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consideration, it was ruled that the questioning could proceed, Mr. Moore having
mentioned his immediate supervisor, Corporal Fraser during examination-in-chief.
Mr. Leithead said Mr. Moore had not requested that anyone else be
with him at the meeting of May 4.
In cross-examination, Mr. Leithead said he could not recall Mr.
Moore saying the fifth appraisal was unfair. He was certain Mr. Moore had not
asked for help, but conceded that "he said if we phoned Fraser 'he would vouch
for me.' I think he meant Fraser would support his performance. I said it was
not necessary because we had the appraisals . . . . ..He didn't state the appraisal
was unfair, but I don't think he agreed with it. It had been discussed with Ellis.
Had he asked for representation I'd have granted it. Even if I had phoned Fraser,
his opinion would not have influenced the decision."
Mr. Leithead insisted there was no coercion. "We felt no anxiety
on his part and we felt the decision was his. We recognized there would be
some stress, but he didn't show it. I think Palmer's judgment sound. It was
he who suggested Mr. Moore should leave right away."
It is now necessary to review the week which followed immediately
after the meeting of May 4.
The grievor returned to his unit shortly after 5 p.m., told his
supervisor, Corporal Rawle Fraser, what had happened, and about 5:30 p.m. proceeded
to his home i.n Milton. The evidence of Mr. Wolfgang Hirschfeldei is that
"toward six" he received a telephone call from Mr. Fraser. Mr. Hirschfelder,
vice-president of the local union, was not on duty at the time but also worked
rotating shifts in Unit 3 and knew Mr. Moore. He said he was "upset" by what
Mr. Fraser told him, and he telephoned Mr. Moore. On his advice, Mr. Moore
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placed a call to Mr. Leithead at his home. The grievor and Mr. Leithead
both say this call was at about 6:30 p.m. and they agree it was brief.
The griever said he.wished to withdraw his resignation; Mr. Leithead
replied th,at "I wouldn't let him do it, because we had already decided
to release him." Mr. Leithead also testified: "I don't recall the
exact words, but his mood had changed. He sounded anxious and a little
ang ry."
In consultation with Mr. Hirschfelder, the grievor prepared the
letter to Superintendent Roberts, dated Kay 7, which has already been quoted.
They sought and were granted the meeting with the Superintendent and his
deputy at 3:30 p.m. on May 8. Their overtures were rejected, except that
Mr. Roberts "amended" the date of resignation to May 18, so that Mr. Moore
would receive two weeks' pay, but would not be required to work.
One other event of May 8 must be mentioned. On that day Mr.
Moore signed an "Application for Superannuation Benefits." It is obvious
that most of the document was typed by some person unaware of Mr. Roberts'
decision to extend the grievor's resignation date to May 18: it shows
(in type) the "effective date of separation" as "04 05 79." The
signature and date appear to be in Mr. Moore's writing, and a hand-written
"x" indicates that the applicant desired a "Return of contributions." Mr.
Leithead was unable to say whether the application was signed before or after
the meeting that afternoon, and the grievor did not testify on the point.
It may be noted that several persons who had some part in the
events described above were not called to testify. These included the
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Superintendent, Mr. Roberts, who presided at the meeting of May 8; the
Assistant Superintendent in cha~rge of Unit 3, Mr. J. Palmer, who attended the
meeting of May 4; Mr. Ellis, who assisted Mr. Palmer in supervising Unit 3
and prepared all five appraisals of the grievor's performance; Mr. Mitchell
and Mr. Taylor, who - - like Mr. Fraser --- were Corporals ranked C.0.3
and supervised the grievor's work from time to time. Corporal Fraser was a
witness, but his testimony related almost entirely to the Ellis appraisals
of the grievor's performance. He disagreed with many of the ratings and said
he had been consulted about onl,y one of five appraisals. In his opinion the
grievor's performance was "average" for a C.O.l probationer.
In argument on behalf of the grievor, Mr. Richards emphasized that
Mr. Leithead, who arrived at Maplehurst in March, had no personal knowledge
of the grievor's work, but relied on information given him by Mr. Palmer and
on the Ellis appraisals. Also emphasized was Mr. Leithead's statement that
he presumed Mr. Ellis had consulted the grievor's immediate supervisors
- - - Messrs. Taylor, Mitchell and Fraser - - - in preparing appraisals, but
that presumption was rebutted by Mr. Fraser's testimony that he had been
consulted only once. Thus, it was argued, the senior officers concerned were
relying on "very shaky reports."
. It is not possible, however, for this Board to pass judgment on
the validity of the appraisals made by Mr. Ellis or the conclusion reached
by senior officers at Maplehurst when they decided to release Mr. Moore on
the ground that he was failing to perform his duties satisfactorily or that
he was not capable of doing so. We have not been charged with the determination
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of that issue.
The principal arguments advanced on behalf of the parties very
properly related to the resignation issue.
It was urged by Mr. Richards that in the paramilitary milieu of a
correctional institution, the grievor was inevitably overawed or overwhelmed
by two very senior officers. Suddenly presented with a choice between.
resignation and immediate release, he felt his future threatened and understood
that he really had no option but to resign. He was alone and unrepresented
and his request for Fraser's help was spurned. His superiors even told him
what to say in the res,ignation. In such a context, it was argued, no
genuine intent could be formed and it would be unreasonable to infer such
intent as voluntary.
In this connection, Mr. Richards quoted the observations of
Mr. S. R. Hennessy, a member of the Board in kzurray and Ministry of revenue
34/76.
In that case (the grievor having complained of a "dismissal") the Board
declined to find her written resignation to have been involuntary. Mr.
Hennessy said he was most reluctantly joining in the decision subject to an
addendum in which he said:
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 impartial
review 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 o+ is
emotionally upset.
i. ,.,
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,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 tid 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.
Mr. Richards then referred to the "objective test" of a
resignation's validity. He pointed out that within two hours Mr. Moore
attempted to revoke or rescind the statement he had signed about 5 p.m.
on May 4, and continued to press for revocation over the next four days.
All he could do thereafter was to proceed with a grievance. He did not
report for work on May 5, 6 or 7, but this was,because Mr. Palmer advised
him to stay away. There was nothing in his behaviour to confirm an intent
to quit orresign. On the contrary, he took the only steps open to him -
after 6 p.m. on May 4 - - -with a view to revoking the resignation signed
that afternoon. As for Exhibit 13, the application for return of superannuation
contributions, Mr. Richards said it was signed only because the grievor needed
the money.
Mr. Richards pointed out that management decided to release the
grievor after a trial of only nine months.. It was premature and unfair; no
attempt was ever made to assign him to work at which he might have been more
suitable than in Unit 3, an admission Centre where he had been called on to
do considerable paper work. In any event, he could have been told to consider
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,a resignation over the week-end: no release had yet been processed. Mr. Richards
invited the Board to find that the situation was coercive, that the statement signed
on May 4 did not reflect Mr. Moore's true intent and that the so-called resignatio?
was therefore,invalid.
For the employer, Mr. Benedict submitted that the resignation must
be viewed in the proper context, and he proceeded to review the five appraisals
leading to the Management decision in May that Mr. Moore should be released.
These revealed that performance did not improve in any substantial way from the
summer of 1978 to May 1979. All appraisals had been shown and discussed with
the grievor. In October the appraisal had warned that "to be considered for
permanent staff he would have to improve these skills quite a lot '-- i.e.
his "great difficulty with written and oral communication." In January he was
told: "Must improve much more in communication skills and initiative prior to
recommendation to permanent staff." In February the warning was: "Doing somewhat
better. Still needs considerable improvement, especially in communication,"
the last three words being underlined. On May 3, the comments appended to the
ratings by Messrs. Ellis and Palmer were clear, stating that "he is not
fulfilling the requirements of the position."
On the basis of the appraisals,, Mr. Benedict argued that the grievor
had repeatedly been put on notice that he must expect re,lease. He was fully aware
throughout that his performance was regarded by his superiors as unsatisfactory.
This was the context in which he decided-at the meeting on May 4 to Sign a
resignation rather than be released.
Further, said Mr. Benedict, it was the grievor.who asked what he could
do, and later asked what he should say in the resignation. There was no evidence
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that he ever asked for representation; he had merely suggested that his superiors
call Mr. Fraser, who would "vouch" for him. Even if they had made the call, it
would not have made any difference. There was nothing in the agreement with
OPSEU requiring that the grievor be represented at such a meeting. Mr. Benedict
said "coercion" was a serious accusation, and the evidence in this case did not
support it. The mere presence of two senior of.ficers did not constitute coercion.
In any event, the employer had a statutory power to release an unsa,tisfactory
employee and it made no sense to obtain a resignation by "coercing" the
employee.
Mr. Benedict drew an inference that as a result of the appraisals
the grievor decided to resign even before the meeting of May 4. After signing
he discussed with his superiors the return of Ministry property the following
week. He accepted Mr. Palmer's advice to leave his shift at once, and did so.
There was no change in his attitude until after he talked to Fraser. Fraser
telephoned Hirschfelder and Hirschfelder telephoned the grievor. Only then did
he proceed with the attempt to revoke.Mr. Benedict argued that in the circumstances
an accepted resignation could not be withdrawn under Section 19 of the Public
Service Act. The so-called amendment of the resignation by Mr. Roberts was,
according to the witness Leithead, merely a device for giving'Mr,. Moore two
weeks' severance pay.
Mr. Benedict quoted a passage in the,Murray decision at page 19
that "a person can be expected to think much more carefully before signing a
document than before uttering some expression." In his submission, the evidence
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here showed an intent to resign, signed only after discussion and after seeking
advice on how to word it.
Further, said Mr. Benedit, applying the objective test, Mr. Moore
confirmed his intent by not reporting for work and by applying for his superannuation
contributions. He well knew the meaning of a resignation because he had previously
resigned from other jobs.
In the alternative Mr. Benedict said that if the grievor did not
resign, the case should be regarded as one of "justifiable release." In that
connection two questions arose: Was the release a colourable device concealing
a dismissal? Secondly, was the release decided upon in good faith? Haladay and
Ministry of Industry and Tourism 94/78;~Leslie~and Ministry~of Community & Social
Services,P0/77. The first question was not relevant in this case. As to the
second, there was no evidence here that the decision to release had not been made
in good faith. Haiaday (sap& at page 16 was cited as indicating that improper
appraisals do not enable the Board to reinstate a released employee.
In reply Mr. Richards said coercion was implicit in management's
references to the record, i.e. the appraisals. He emphasized that the matter
of representation was important: an unrepresented employee is in no position to
exercise independent judgment when confronted by senior officials. He argued there
was an advantage to the employer in obtaining a resignation; it minimized the risk
of a grievance. Mr. Richards said he was not asking the Board to find the
appraisals were wrong, but only that the grievor had not resigned and should be
compensated.
Turning now to the result in this case, it is our duty to decide
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upon all the evidence whether or not the employee actually intended to
sever VOlUntarily the employment relationship. Tbe principles to be
applied are well known.
In an oft-quoted passage, certain tests were
specified by Mr. Jacob Finkelman more than thirty years ago in
Anchor Cap and Closure'Corp: of'Canada'Ltd., 1 L.A.C. at page 223:
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
remdning in the employ of the
compm y .
The problem was fully discussed by the then Chairman of this
Board, Mr. Beatty,in the MUE-~Y case;'s~pra. There the Board had
before it a written resignation , and it was said at page 15 et seg:
However in the circumstances of this case,
because of the griever'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 griever 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 from the Public Service.
In such circumstances, and assuming 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
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end 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 & Closure'Corp; of Canada ~Ltd. (Supra)
decision, of a continuing subjective
intention to resign from her employment.
That is to say, in the absence of any
evidence that she was induced to prepare
or 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 es to the
meaning and effect of signed documents
generally; (L'Estrange vi F. Graucob Ltd.
11934) 2 K.B. 394), but as well conforms
end coincides with what little arbitral
opinion has considered the issue. Thus
and except where it was made conditional
in nature, (Re
Hospital (Supra) arbitrators have, in
the absence of such extenuating circumstances
as those noted above, accepted a written
resignation as reflecting the actual
intention of the emulouee who oreoared and
signed it. ore Northern Selectric 20. Ltd.
(1969) 21 L.A.C. 53 (Hanrahan). Put
somewhat differently, against.the analysis
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.
On the evidence in the MUIT~Y case, the Board found
the resignation to have been voluntary. The words of Mr. Hennessy in his
addendum have already been quoted as an important part of the submissions
made on behalf of the grievor.
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We are not unmindful of the cautionary note sounded by Mr. Hennessy.
There may indeed be circumstances in which an employer may exert undue
influence on an employee by subtle means or otherwise to induce his
resignation. However, on all the evidence before us we are not satisfied
that this is such a case. The principles to be applied are those set out
by the majority in ~u+ray.
The meeting held on May 4 cannot be considered in isolation from the
grievor's employment history. Although it is not for us to "appraise the
appraisals," two comments may be in order.
The first comment is that the five appraisals do not suggest any
consistent bias against Mr. Moore or failure to recognize his many good
qualities. On the contrary all five appraisals gave him the highest possible
ratings - - _ "A" - - - for attendance, punctuality, dedication to the job
(motivation, interest, loyalty) and co-operation with management and staff.
The second comment is that the appraisals quite consistently rated the
grievor at or below the acceptable level in several important areas of
performance. Perhaps these should be considered not so much as negative
assessments of "performance" in the strict sense, but rather as being
related to his capabilities or suitability for the position of correctional
officer, as perceived, rightly or wrongly by Messrs. Palmer and Ellis,
the officers responsible for supervising Unit 3.
Whether the appraisals were right or wrong - - - and we have not been
asked to find that they were wrong - - - it must have become clear to the
grievor that his superiors took an unfavourable view of his "performance".
It must also have occurred to him that he was. in danger of not making it to
the permanent staff. It was expressly so stated in the second, third and
fifth appraisals. He may not have been familiar with the process known as
..- .-,s
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"release", but he was certainly aware of his status as a probationer, not yet
a member of the ~pennanent staff.
All this must have been in the grievor's mind when interviewed by
Mr. Ellis on May 3, and shown the fifth appraisal. From his point of view
it was a brief and highly unsatisfactory interview. He complains with some
justification that there were even lower ratings than in the fourth appraisal,
although he had received no admonitions from Mr. Ellis in the period between
February and May 3. For the first time, he declined to sign the latest
appraisal because he did not agree with it. Before the interview ended, he
was told he would be called in to see Mr. Palmer the next day, May 4, being
scheduled to work the shift starting at 3 p.m.
After seeing Mr. Ellis, the grievor had about 24 hours in which to
consider his situation. In the circumstances it is difficult to believe
that he was taken completely by.surprise when at 4:30 p.m. on Nay 4 Mr.
Leithead announced an imminent release.
Mr. Moore seemed to us an honest witness. He did not testify that he
requested delay until he could be represented by a steward. He said he asked
"for a union man," that he knew the stewards were not onduty and that "the
only one they could think of was Fraser," whom he wanted "to vouch for me."
This corresponds quite closely with the testimony in cross-examination of
Mr. Leithead. Mr. Fraser was not a union steward but a CO 3, a supervising
corporal. When the suggestion was not taken up, the matter seems to have been
dropped. Instead of seeking delay, the grievor asked about getting a
recommendation for another job and on receiving the reply asked "which would
-.L’ . ,F
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be the better way to do it?" Later, he asked how he should word his
resignation, but he wrote it himself and gave it to his superiors instead
of taking it away for further consideration.
A few minutes later the grievor told Corporal Fraser about the
experience, collected his effects and went home. It was natural and
proper for Mr. Hirschfelder to telephone the grievor after hearing from
Fraser. However, it is not without significance that it was the local,
Vice-President, Hirschfelder. who called the grievor at home - - - not
he who called Hirschfelder. From that point,
advice both in telephoning Mr. Leithead and i,
Mr. Roberts.
he acted on Mr. Hirschfelder's
n writing to and interviewing
Having regard to this sequence of events and the testimony of the grievor
himself, we cannot conclude that Mr. Moore wrote and signed his resignation by
reason of coercion, or that he lacked the intent to give up his job. He had
every reason to be discouraged and no doubt ,in his own mind he felt "on the
spot" at the meeting or --- as he says --- "bewildered", but he did not ask
for time to think about it; instead he asked for Mr. Leithead's advice on
two important questions, and accepted that advice.
The subsequent change of mind was undoubtedly influenced by advice from
others. However, he could not have had much hope of success, because on the
same day as the interview with Mr. Roberts, May 8, he applied for the return
of superannuation moneys, a step he need not have taken with such haste;
Mr. Roberts decided he should be paid salary for two more weeks.
In all the circumstances here the Board is not persuaded that the
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involuntary, and accordingly the grievance must de
day of July, 1980
,$iiL&’
E. B. Jolliffe, Q.C., Vice-Chairman
I concur
G. A. Peckham, Member
I concur
K. Levack, Member