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HomeMy WebLinkAbout1981-0413.Wright.82-03-08. IN THE MATTER OF AN ARBITPATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OPSEU (Eva J. Wright) Grievor -And - The Crown in Right of Ontario (Ministry of Consumer and Commercial Relations) mployer P. G. Barton Vice Chairman S. Dunkley. Member W. A. Lobraico Kember For the Grievor: J. Miko, Grievance/Classification Of~ficer Octario Public Service Employees Unio:: Forthe f-l. Fleishman, COUnsel Kinistry of the Attomey Generel Hearing: February 2, 1982 - 2 - AWARD ;- . The Grievor was employed as a Clerk 4 General,CorPorate Finance Department, Ontario Securities Commission. On May 25, 1981 she resigned @ way of signed letter of resignation. On Junk 26, 1981 she filed a grievance alleging that her letter of resignation had been made under duress. At the hearing it became apparent that the Vice-Chairman had heard another matter involving the Grievor (GSB 110/78), hearing date July 8, 1981. The issue of possible bias was raised by the ViCe- Chairman and following submissions the matter proceeded. The reason for the decision to proceed despite a stated apprehension of bias on the part of the Grievor was that, unlike in the private sector, the composition of boards before this tribunal is done on a random basis. The parties therefore do not choose the~!fice-Chairman or Members and the composition of the Board depends upon the luck of the draw. It is reasonably important that this practice be continued and to allow a person to be disqualified solely because of an allegation of bias without actual evidence would lead to a form of selection by the parties. The other reason for proceeding was that the earlier matter was a Classification grievance in which credibility was not in issue and thus there Was no reason for the Vice-Chairman in this matter to be biased against this Grievor. The Grievor was employed at the.Commission from January 31, 1977. DUrfng the last part of her employment she was directly supervised by Karen Eby and indirectly supervised by R. Steen, the head of the Corporate Finance Department and in charge of approximately 25 employees as well as professional staff. The work in the Commission is high pressure work requiring considerabir - skill and precision. The period between January and the and of May is the busiest time of the year and 1981 seems to have been no exception. The result of this is that between January resignation, the Grievor along with all working in a particularly stressful env 981 and May 25, 1981 the date of of the other employees was ronment. At the time of resignation the Grievor was approximately three months pregnant and under a doctor's care for cramps, headaches, and other pain which subsequently turned out to be caused by a medical condition . associated with the pregnancy. Although the Grievor stated that the Employer must have known of her pregnancy-prior to May 25. Mr. Steen stated that he did not realize that she was pregnant and had no discussions with her prior to May 25 concerning her medical problems. Karen Eby also indicated that she was not aware of these problems prior to May 25. Whether or not the Employer was aware of this condition, it is a fact that this, combined with the stress of the job was clearly a factor contributing to her decsion on May 25. We have no evidence that the relationship between the Grievor and her superiors was in any way strained until April 13, 1981. At that time there was an incident in the office in.which her Supervisor, Karen Eby asked her to do a job (which is, incidentally within her job specification), and the Grievor refused to do it. Tempers flared and the material which she was asked to work on ended up on the floor outside Mr. Steen's office where a meeting was in progress. Although Mr. Steen indicated to Personnel that he wished to discharge the Grievor for this incident, the upshot of it was a letter of reprimand dated April 28. 1981 which was placed in her file and . . . I . . After the date of her resignation on hay 25, the Grievor did have some reason to believe that her Supervisors had wished to have her dismissed, but there is no evidence that she was aware of this at the time she resigned. Following the receipt of the letter of reprimand and her response to it which was entered in her file, conditions between herself and her 4 Supervisors was strained and what I would call coldly formal. There is no evidence that.the Grievor was given any additional work to do during this period other than the normal work which would have been given to her as one of the employees. There was no evidence given that she was in fact treated in any way different from the other employees between April 13 and May 25. On May 25, 1981 she arrived at work late because of traffic problems, got a coffee and sat down and was reading a newspaper. Mr. Steen arrived and they went to an office for a discussion. He was concerned that she was not working and asked her to,as of that day,report daily to her Supervisor in writing concerning her comings and goings and what work she di,d. She was shocked and speechless about this because no other employees had been asked to follow this practice and left the office slamming the door. She was very upset about this and went to the telex room where'she talked to Audrey Duncan and another. Audrey Duncan was concerned about her health and was concerned as well that this upset might affect her child and in fact stated to her "if I were in your position I think I would get out, I'd leave". She was in fact in considerable pain at the time and thought she might be miscarrying. She drafted a letter of resignation and took it to the eighth floor for typing, took it back down to her floor and left it on Mr. Steen's desk. She then Y - 5 - called her husband and told him she had resigned. 'One hour later Mr. Steen came in with a photocopy of the.letter and said "I will let Personnel knou". He had written "accepted" on it. At this stage her formal resignation was complete. There *was considerable evidence given at the hearing concerning events following this stage and this evidence was admitted solely as relevant to the question of her state of mind as of the time she submitted the resignation. Thus what she said later in the day as well as what she did and said later in the month and in June is useful only insofar as it bears upon her intentiorson May 25. She indicated that she felt hurt and rejected following the visit of Mr. Steen and felt that it was obvious that her resignation was exactly what he wanted. She spoke later in the day to Judy Changsang and indicated that she couldn't take the pressure, she feared for the health of herself and her child. It is significant that there was no allegation that she was told she had to resign. The following day she went to the Personnel Department to see about her Credit Union deductions and looked in her personnel file where she saw some notes written by Tom Rich,a Personnel Administrator. These notes related to a discussion held concerning the April 13 incident and apparently contained a reference by Mr. Rich to statements made by Karen Eby and Mr. Steen as to what they thought the appropriate discipline should be. Because the Grievor was testifying was to what she saw written by another person about what a third and fourth person had said I am not inclined to put particular weight on the content of the alleged recornnendation. In-any event because the Grievor did not become aware of this recommendation until after she had resigned it could not have been on her mind on May 25. - 6 - ~. d On May 27 the Grievor met with Mr. Steen who did admit reconmiending her dismissal to Personnel. He indicated at the hearing that he had accepted the decision of Personnel that a reprimand was sufficient and had in fact acted upon it. At the meeting Mr. Steen also indicated to her that "you won't believe m but from the bottom of my heart I don't like the way you are leauing". He also indicated that he did not know that she was pregnant. Between May 27 and June 2 she contacted the Union. On June 2 she saw Mr. Knowles the Chairman of the Security Commission who suggested she talk to a Mr. Salter and to her Union. She missed June 4 and June 5, the last day of her employment, because of medical problems and in fact found out at that stage that she had a .particular condition associated with her pregnancy which required her to spend a week in bed. On June 11 she spoke to the Union and was advised to write a letter revoking the letter of resignation. This was' prepared on June 17 and sent to the Employer. On June 25 she met Mr. Salter the Director of the Ontario Securities Commission and an unproductive discussion ensued. This was the last date upon which she heard from anybody in management and the following day she filed the grievance. The sole issue in this hearing is whether or not the letter of resignation tendered and accepted on May 25, 1981 was tendered as a result of a voluntary act on her part or whether or not it was coerced by management. We are unanimously of the view that it was a voluntary act on her part. The test to be applied in cases of this sort has been enunciated by this Board in such cases as Murray 34/76, Moore 128/79, and Rotundo 267/79. The issue has come up in the Public Service Grievance Board. particularly in the case of De Souza 903/80 and is constantly being addressed in the private sector. - 7 - :- . Most of the cases involve's suggestion or a threat by an employer that the employee resign with suggestions that if a resignation is not forthcoming a dismissal will follow and bad recomnendations will be given. Hany of the cases as well involve issues of whether or not there was in fact a resignation and hinge upon an application of the so-called two-pronged test of subjective intention and objective act indicating intention. In this matter we have no doubt about the presence of an objective act because of the filing of a signed letter of resignation. The sole question is whether or not that resignation was coerced by management either by actual pressure or by "subtle pressure". For the reasonsset out below we have found that it was not. In particular: 1. Other than the letter of reprimand of April 13, the Grievor was not selected for~the application of discipline in any way. 2. There is no evidence that the Grievor was asked to perform any functions not related to her job or to do any more work than any other employee. 3. The Employer was unaware,in our view,of her medical condition and her pregnancy and could not be said to have taken advantage of it by applying particular pressure to her. 4. Much of the stress that she was under on May 25 was the normal stress of the job which was apparently felt by all employees. 5. At the time of the resignation, she was aware of the possibility of a transfer although she indicated that she did not consider the possibility .of a leave. 6. There is no suggestion that the Employer asked her to resign or in any day suggested that she do so. 7. The request of Mr. Steen that she keep a time log of her activities on May 25 and subsequently, although a bit strict, could not be said to be so unusual and h~arsh that she had no option but to resign. - a - ;- d 8. The suggestion ofAudrey Duncan on May 25 that she resign may well have been the catalyst which led to the letter of resignation. Audrey Duncan is of course an employee. It seems to us that all of the activities after May 25 are consistent with a situation of an employee who has made a somewhat hasty decision and who has subsequently but rather slowly come to regret it. The Grievor found out on the day following the 25 of May that she had in fact played directly into the hands of Mr. Steen in that she found out that he had wanted her out. No doubt she was considerably angered by this. As she found out more and more about what her Employers had thought about her she began to wonder if she had been coerced into resigning. As I have indicated however,based on what the Employer knew and did prior to May 25 we cannot say that she was coerced into resigning, and the grievance is dismissed. 1 We cannot leave the matter without the suggestion that, although Mr. Steen did not realize that she was going to resign until he received the letter on May 25, he might perhaps have acce~pted it without such obvious relish. Perhaps because of the pressures of the job there seems to have been very little other than .purely formal contact between the Grievor and her Supervisors during the last month of her employment. Perhaps if they had been aware of her pregnancy or her medical condition s.ome discussions might have ensued in which any problems they were having with her employment might have been solved. - 9 - DATED at London, Ontario this 8th day.of March, 1982. P. G. Barton