HomeMy WebLinkAbout1983-0589.Mansell.84-09-26Between:
Before:
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
For the Grievor:
For the Employer: F. J. Benedict
Xanager, Staff Relations
fiinistry of Correctional Services
Hearings: March 15 and July 31, 1984
OPSEU (Bonnie Mansell)
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Grievor
The Crown in Right of Ontario
(Flinistry of Correctional Services)
Emplo'yer
R. L. Verity, Q.C. Vice Chairman
F. D. Collom vember
G. Griffin Member
J. K. A. Hayes
Solicitor
Cavalluzzo, Hayes and Lennon
Barristers & Solicitors
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DECISION
The sole issue for determination is whether the Griever
did in fact resign from her employment with the Ministry.
In a grievance dated August 11, 1983, Bonnie Manse11
alleges that her letter of resignation of the same date was submitted
under duress. By way of settlement, she requests rescision of the
resignation and reinstatement.
As might be expected, many of the facts were in dispute.
The Grievor was employed as a Correctional Officer 2 at the Windsor'
Jail on the relevant date. Initially, she worked three days a week'
as a "casual" from November 1978 to June 1980, and on the latter
date commenced full time employment. Mrs. Manse11 was the first .
female Correctional Officer at the Windsor Jail to be assigned to i
work in the male section of this maximum security institution. On
the evidence, there is no dispute that she performed her duties in
a satisfactoiymanner. The evidence is also clear that she had no
previous disciplinary record. The Grievor is the mother of two
teenaged children and she has been a single parent from the time of
her initial employment with the Ministry.
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On the morning of August 11, 1983 at approximately 11:35
a.m.,the Grievor attended a meeting at the request of Deputy Superintendent
James Ross at his office. Sergeant Camphor-St was also present at the
meeting, which lasted some 20 minutes. Deputy Superintendent Ross
posed a series of questions to the Griever concerning her personal and
professional involvement with inmate Guy Harris, who was then incarcerated
at the Windsor Jail. The Deputy Superintendent accused Mrs. Manse11 Of
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developing a relationship with inmate Harris Over an extended
period of time. He alleged that Mrs. Manse11 was being investigated
by the Windsor and Amherstburg Police and further implied that she
was the common-law wife of inmate Harris. Mr. Ross confronted the
Grievor with information that he had received from the Guelph
Correctional Centre that the Griever had visited Harris at that
location under an assumed name, that she had received telephone calls
from~ Harris at her residence, and further that she had been seen with
Harris in public in both Windsor and the Griever's home at Amherstburg.
FuSther, he alleged that Mrs. Manse11 had become involved in the
purchase of inmate Harris' car, and the payment of his legal expenses.
The' evidence is clear that the Griever was taken by surprise
by these accusations and became emotionally distraught and cried one
several occasions during the course of the interrogation. She denied
most of the allegations, but did admit that she had visited inmate
Harris at the Guelph Correctional Centre and that it was improper to
have done so, and that Harris had telephoned her home. Further, she
was unable to explain to Deputy Superintendent Ross how Harris had
come into possession of her unlisted telephone number.
Mr. ROSS advised the Griever that her actions were
embarrassing to him personally and that he was prepared to recommend
a Ministry investigation that would be embarrassing to both the Griever
and her family. He concluded the interrogation by asking the Griever
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what she would do if she were in his position. According to the
evidence of Sargeant Camphorst, who was an observer at that meeting,
the Grievor replied that "I guess I'd fire you."
According to Sergeant Camphorst's written notes of the
interview, his recollection of the subsequent events were as follows:
'Mr. Ross told her this was a serious situation.
Miss Mensell then asked 'What do you want ma to do, resign?'
Mr.Fass then stated 'All I amsayingis that1 don'tmt
to see you embarrassed any more than you have to.'
Mrs. Manse11 covered her eyes for a rr?ment, seemed to cry.
A few words were exchanged and Ms. Manse11 then stated she
would resign and asked 'How do you want me to put it, I
quit or what?' W
Deputy Superintendent Ross then dictated the exact wording
of the resignation, which the Grievor in turn reduced to writing.
Mr. Ross then accompanied the Grievor to the office of
Superintendent Villeneuve. The Grievor's meeting with Superintendent
Villeneuve, also attended by Deputy Superintendent Ross,lasted only
four minutes. The Superintendent asked the Grievor on two separate
occasions if this was the course of action that she wished to pursue.
According to Superintendent Villeneuve's evidence, the Griever replied
in the affirmative and was "calm and business like" during the meeting
in his office. The Superintendent accepted the Grievor's resignation.
Superintendent Villeneuve ordered that the Griever's
personal effects be removed from her locker, and that she leave
the institution. Accordingly,, her locker was cleared and the
contents given to her, whereupon she left the institution at
approximately 12:35 p.m.
The Griever then went to the house of her sister, Mrs.
Gwen Hunt. Mrs.
Hunt testified that.the Griever was upset, flustered
and cried frequently, and that in Mrs. Hunt's opinion the Grievor was
in a state of shock. Later that afternoon, the Griever called the
Windsor Jail and requested the telephone numbers of the Union President
and the Union Steward. Later that day, the Union President dictated
the. form of a letter, which the Grievor subsequently reduced to
writing; In that letter she rescinded her resignation and alleged
that she had been forced to resign under duress.
On August 12, 1983, the Grievor attended at Superintendent
Villeneuve's office at approximately 11:30 a.m. and handed him the
letter withdrawing her resignation. The Grievor refused to discuss
the resignation with the Superintendent on the basis that the matter
was then in thf hands of her Union. Superintendent Villeneuve accepted
the letter for filing purposes only. Subsequent to that meeting, the
Griever attended at the Jail's Personnel Office and signed an application
for superannuation benefits.
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On the advice of the Union, the Grievor attended at work
in uniform on Monday, August 15 but was refused the right to work.
She met Superintendent Villeneuve briefly at approximately 8:20 a.m.
and was advised that her resignation would not be rescinded. On
August 16, 1983 Mr. Villeneuve wrote a detailed letter to the Grievor
which concluded that her resignation had been voluntary in nature.
Some form of Ministry investigation followed these events: however,'
no~evidence was adduced at the Hearing as to the form or result of
that investigation.
Briefly, the Union's case was that the resignation was ~..
not voluntary and must be set. aside, with reinstatement and compen-
sation to the Grievor. The Ministry argued that the resignation
was voluntary and that the Employer had exerted no duress, coercion
or undue influence. Ample precedents were submitted by the Parties
in support of their respective positions.
In matters of this nature, normally referred to as "quit"
of "resignation" cases, Boards of Arbitration must review the evidence
to determine the true intent or continuing intent on the part of the
employee involved. It has frequently been stated that there is both
a subjective and an objective element in that determination.
As Arbitrator Shime stated in Re University of Guelph (1973)
2 L.A.C. (2d) 351 at p. 359:
"The very obvious difficulty in arriving at a cktezmination
of this type of case is in the very Mture of the search
to discover the employee's actual intent. Since intent
is basically a subjective concept, a board of arbitration
willbehardput in those caseswhere an employee states
that he reacted in anger or that he had an em%ional
outburst, but that he did not really intend to quit his
job. In many situations one nut reoxmize that anger
and anotion may be afire than a flash situation and an
employee may have an outburst at the plant, stalk out
and then overnight, or after soroe reasonable period,
when theemotionhas su+.idedorabatedand therehas
been an opportunity for sensible reflection realized
that the statement~smade in aburstof anger and that
he did not really intend to quit. Faced with that type .
of situation it is very difficult to say that an ennployee
intended to sever the -1-t relationship, and
accordingly boards of arbitration rmst of necessity look
at other facts in order to find a n~re objective basis
that the.en$oyee had in fact quit."
Arbitrator Palmer makes the following statement in his
text Collective Agreement Arbitration in Canada (Second Edition)
at p. 273:
"A further difficulty which nuy arise in this area is
that it is open to a union tn ?hc~ that, although the
facts are consistent with an intent to quit, the intent
WLS not freely formed, but rather was the result of
excessive pressure by the e@oyer. Thus, it has been
held that in considering the wluntariness of the intent
to quit, one should consider: vðer there was provocation
on the part of the employer: vk&her the anplayer issued
an ultimatumthatthe kployee do -thing or face
certain consequences; or if the employer requested the
eniployee toquit. In short, the intenttoquitnusthave
keen freely fomd by the employee involved and not created
directly or indirectly by the employer...."
In the instant qrievance, there is a brief one sentence
letter of purported resignation. On the evidence, we find that
that letter was written by the Griever in the emotion of the mOment
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and in the face of damning personal and professional accusations
under circumstances where the Griever had no benefit of independent
advice. The evidence is clear that at the time of the purported
resignation, no accusation levelled against the Griever had been
verified by the Ministry.
It is significant in our opinion that Deputy Superintendent
Ross stated in his written report to Superintendent Villeneuve that
based upon the documentation that he had in his possession he would
recommend a three day suspension and a Ministry investigation. In our
opinion, the Grievor Signed the purported resignation because of severe
emotional stress arising from a series of largely unsubstantiated
allegations of misconduct. The Griever's actions were more likely a
result of frustration and a desire to get out of that environment
that brought her to the point of wr.iting the letter in question. We
find that the Griever was provokedby the actions of the Employer,
into submitting the letter of resignation.
The Board adopts the rationale of Arbitrator Adams in
Re Metropolitan. Toronto Board of Commissioners of Police and Metropolitan
Toronto Police Association (1978), 18 L.A.C. (2d) 7 at p. 23 where he
states:
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. ..although a Union Steward need not be sunm-oned every
the an employee resigns, in circumstances such as before
this arbitrator, the failure to provide the qrievor with
an opportunity to consult the As%ciatiOn or to think it
over tends to tip the scales against the employer's
position."
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On all of the evidence, this Board is unable to find that
the Grievor submitted a voluntary resignation on August 11, 1983.
Having reviewed the evidence, we would conclude that the Griever's
actions.did not reflect an intent to terminate employment but
rather reflected the only expedient device to end an unpleasant
scenario. The Griever did communicate her rescision of the purported
resignation to Superintendent Villeneuve within a reasonable time frame.
The fact that the Griever signed an application for
superannaation benefits on AUgUSt 12 is understandable in the cir-
cumstances and cannot be taken to support,the Ministry's case.
In the circumstances, the Grievor should have been allowed
a reasonable period of time in which to consider the implications of
her actions and to obtain independent advice prior to the final accept-
ance of her resignation by the Ministry. It is inconceivable that
the Grievor was not afforded a reasonable period of time to consider
her options in the light of the circumstances. The evidence is
uncontradicted that it took just one hour or less to confront the
Grievor with serious personal and professional allegations, obtain
her purported resignation, to accept that resignation, to return her
personal effects and have her out of the institution.
Accordingly, having found that the Griever did not resign,
this Board orders that she shall be forthwith reinstated to her position
as a Correctional Officer at the Windsor Jail. In the circumstances
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there will be no loss of benefits and the Griever shall be compensated,
without interest, for all lost wages from the date of her improper
termination. The Board shall remain seized in the event that the
Parties have any difficulty in determining the appropriate quantum
of compensation.
DATED at Brantford, Ontario, this 26th day of September.,
A.D., 1984.
R. L. Verity, Q.C. - Vice Chairman
A-?&- P F. D. Collom - Member