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HomeMy WebLinkAbout1985-1542.Rao.88-09-01 DecisionO N J A RIO CROWN EMPLOYEES G RI EVAN C E SETTLEMENT BOARD EMPlOYÉS DE LA COURONNE DE L'ONTARIO COMMISSION DE RÈGLEMENT DES GRIEFS 180 DUNDAS STREET WEST. TORONTO, ONTARIO. M5G 7Z8 - SUITE 2100 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G lZ8 - BUREAU2100 Be tween : Before : TELEPHONE/TÉLÉPHONE (416) 598-0688 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Jyothi Rao) Grievor and The Crown in Right of Ontario (Ministry of Community and Social Services) Employer B. Fisher H. O'Regan M. O'Toole Vice Chairman Member Member For the Grievor: N. Roland Counsel Cornish & Associates Barristers and Solicitors For the Employer: C. Slater Solicitor Legal Services Branch Ministry of Community and Social Services Hearings : October 15, 1087 May 2, 1988 DECISION This case involves the determination initially its to whether the grievor resigned her employment or whether she was constructively dismissed. The employer is not alleging just cause, therefore, if this Board finds that the grievor was constructively dismissed, then the employer agrees that an appropriate order would be re-instatement with full back pay. If, on the other hand, this Board finds that the grievor voluntarily resigned, then a new hearing will be scheduled to determine whether or not the Grievance Settlement Board has authority under Section 19 of the Public Service Act to review the decision of the Minister with respect to the withdrawing of a resignation. It was agreed that for the first part of this hearing we would only hear evidence as to the events up to and including December 5,1985 which was the date upon which the grievor purported to withdraw her resignation. The grievor joined the Ministry in March, 1973 as a Social Worker I. She became a Social Worker II after 3 months. She has worked at the Orillia facility throughout her employment with the Ministry. The grievor seems to have had a lot of problems with her direct supervisor, Mrs. Griffin. In October, 1983 the grievor made a request to be transferred to a different supervisor, however, this request was turned down by management. The grievor testified that she was in fact having problems with Mrs. Griffin as far back as 1979. According to the grievor, the basis of the conflict had four aspects: 1. Case Management They disagreed over case management, that is, the manner in which actual matters were handled; 2. Assignment of Work The grievor objected to being given different work assignments and different areas of responsibilities; -2- 3. Performance Appraisal The grievor disagreed with her appraisals; 4. Personality Conflict With Supervisor. Starting in August, 1985, the grievor started having health problems involving loss of weight, poor sleeping, headaches and a fever. In early November, she requested a leave of absence without pay for two weeks for medical reasons. She was told by her manager that if she was going to apply for leave of absence, she had to put in a formal application using the appropriate government forms. She did so a few days later, however, she now applied for six weeks' Ieave of absence and put forth as her reason simply "personal reasons". Immediately after putting in the application for leave of absence, she did not go to work as she claimed she was ill during this period of time. The employer on November 18,1985 denied her the six week leave of absence. There were also some problems between the grievor and her supervisor regarding the adequacy of various medical certificates submitted by Mrs. Rao during this period of time. Mrs. Rao seemed to become extremely frustrated at this process and viewed the actions of management as being indicative of their lack of trust in her. The important events revolve around November 29,1985, the day upon which the grievor submitted her written letter of resignation. She arrived at work at her normal time at 8:15 a.m. and met with Mrs. Griffin regarding Mrs. Griffin's request for medical certificates. This meeting did not resolve the issues between the parties as Mrs. Griffin continued to deny sick leave entitlement to Mrs. Rao for some of the days in which she was absent. Mrs. Rao attempted to contact Mr. Seymour, the supervisor of Mrs. Griffin, but she was unable to get a hold of him because he was busy. -3- Mrs. Rao indicated that this was one of the saddest days in her life. She felt that, after working this long for the Ministry, they should have believed her regarding her sickness. She indicated that she could not take it anymore and that it was not worth it. She did not speak to the Union Steward that day, however, she did discuss her intention to resign with her co-workers. They were emphatic in telling her not to resign. At first she drafted a resignation letter which stated her real reason for leaving, that is, she could not take the stress anymore but she decided to throw out that draft. She made a couple of drafts of her resignation letter and finally drafted the one which was marked as Exhibit 29. That letter is set forth in its entirety as follows: MEMORANDUM To: Mr. M.R Seymour Acting Manager, Community Services Work Supervsor. Date: 198511 29 cc: All members of the Community Services Department. Human Resources. Business Office. In order or me to supervise our family businesses in Orillia and Toronto, and to spend shall be terminating my employment on December 27,1985 It is rather difficult for me to say ''Good Bye" to all Q you and the staff members at community) I made with best intentions and pride. I shall cherish some of the pleasant working experiences at the Centre. Wishing you all a very happy Christmas and prosperous New Year. time with my family) I decided to resign from my lengthy employment at this Centre. I the Centre. Whatever contribution I may have made to the department, Centre, and the Jyothi Rao M.S.W, C.S.W. -4- She indicated in her testimony that the reason she set forth in the memorandum, that is that she wanted to supervise her family businesses and spend time with her family, was false but she put that reason down so that her work record with the Ministry would be clean. She had Sue Goldsmith, the department secretary, type up the letter from a handwritten draft that she had prepared. She distributed this letter to Mr. Seymour by inserting it into his mailbox and she personally delivered a copy of the letter to Mrs. Griffin. She left the additional copies for her secretary to distribute. She stated that her mental state that day was one of anger and sadness and that she did not eat well. Later that day she also prepared a handwritten document to the personnel department asking them to provide her with the necessary forms on the following Monday that she would be required to fill out as a result of her resignation. On cross- examination, she indicated that she gave one month’s notice because she realized it would take some time to clean up her files. The grievor admits that at no time did either Mrs. Griffin or Mr. Seymour or any member of management ask her to resign, nor did anyone ever tell her that she would be terminated or that her employment was in jeopardy at all. She drafted the resignation letter while in her office and therefore no member of management had anything to do with her writing of the letter. Mrs. Rao also had a discussion with Mrs. Griffin on the day of her resignation after she had already handed in the resignation letter. This discussion centered mostly around whether or not the medical certificates previously submitted by Mrs. Rao were sufficient and there was some discussion as to whether or not resignation was the best thing. At no time during this conversation did Mrs. Rao indicated any reluctance to resign. -5- When she left work on November 29,1985 she felt better. However, when she got home, she started to realize she had made the wrong decision. She said that over the weekend she realized she really liked her job, notwithstanding the problems with her supervisor and furthermore, she had no other job to go to. When she returned to work on the Monday she spoke to a co-worker, Mr. George Menu, regarding withdrawing resignations. He suggested that she speak to Mr. Middleton, the Union Steward, which she did. Mr. Middleton told her that she could withdraw her resignation within five days of handing it in. She had this conversation with Messrs. Menu and Middleton on Monday, December 2, 1985. However, she did not draft a letter revoking her resignation on December 2nd. In fact, she waited three more days, that is until December 5,1985 to hand in the letter. On December 5,1985 she submitted a letter to Mrs. Griffin and Mr. Seymour which contained the following paragraph: Upon further consideration, I am withdrawing my resignation as I have enjoyed working at H.R C. and decided to continue working and furthermore, family business matters are now well settled. However, prior to that, on December 4,1985, management had already sent Mrs. Rao a letter, although she had not yet received it, which indicated they had accepted her resignation dated November 29,1985. The grievor had no explanation for the delay of three days other than she thought she had five days to make her decision and that is why she took four days. Mrs. Rao indicated that she made up her mind to retract her resignation on Monday, December 2,1985. Mrs. Griffin gave evidence on behalf of the employer. A lot of her evidence related to the various meetings and discussions she had with Mrs. Rao in the months prior to the incident in question, however, it is not necessary to repeat that evidence in detail. However, Mrs. Griffin testified that in a meeting with the grievor and Mr. Seymour on November 6th in which there was a discussion regarding the leave of absence for six weeks, Mrs. Rao indicated that in addition to the six weeks’ leave of absence, she would be asking for permission to take her one month’s vacation in January and after that, she might resign. It is interesting to note that given Mrs. Rao’s plans, she would have been reporting back to work for a few days in December. This was because Mrs. Rao had found out from the personnel department that in order to be entitled to receive benefits during that period, she had to work at least one day during the month. Mrs. Griffin said she had no knowledge of Mrs. Rao’s resignation until Mrs. Rao handed in the letter of resignation on November 29,1985. When she received it she was not totally surprised because Mrs. Rao had previously mentioned this family business and Mrs. Griffin thought that it was a reasonable thing for Mrs. Rao to do. Mr. Seymour was the next management witness called. He testified that in the November 6th meeting, Mrs. Rao indicated that she was going to return to work on December 27th, work a few days and then take her vacation for the entire month of January. I note that there was an exclusionary order so that Mr. Seymour did not hear Mrs. Griffins’ testimony. Mr. Seymour met with the grievor on November 27, 1985, two days before she resigned, at which time they discussed various things including the leave of absence. Mrs. Rao indicated that she was shocked to have been refused a leave of absence and again, Mr. Seymour explained the reason why it was refused. He asked her if she was having any personal problems and she replied that she was not. He also reminded her of the Employee Assistance Program which is provided by management to benefit employees who are having medical or psychological problems. She indicated that she was happy in her job and that she found it very rewarding. Mrs. Rao said at that time that she had felt rundown in the past but now she was rested and foresaw no problems and that she was now not going to take a vacation in January after all. The next thing -7- Mr. Seymour had to do with the case was receiving the letter of resignation on November 29, 1985. He was surprised to receive it given the uplifting tone of Mrs. Rao’s comments only two days previous. Mr. Seymour responded to the resignation letter on December 4th because he wanted to check with the Human Resource Department as to the correct formality of receiving a letter of resignation and also he had other things to do at the time. The last witness for the employer was Susan Gilcrest, the Human Resource representative at the facility where Mrs. Rao worked, She recalled a meeting with Mrs. Rao at the end of October or the beginning of November, 1985 in which the relationship between leave of absences and benefits was discussed. Mrs. Rao asked about the procedure and was told that if she was off for a calender month she would have problems continuing her benefits. She said that if she wanted to continue her benefits she had to at least work one day in that month. It is clear from a review of the case law that if the grievor truly and freely made up her mind to resign, then she can not withdraw her resignation in the sense that she can change her mind. If that is what happened, then Section 19 of the Public Service Act is called into play and the Deputy Minister has at least some say, if not a complete say, as to whether or not the employee can withdraw her resignation. Therefore, if the Union is to succeed, they must show that the grievor did in fact not truly resign, that is, she did not have at the time of her resignation a true and free intention to permanently sever the employment relationship. There is no serious accusation by the Union that Mrs. Rao was forced to resign. The evidence is quite clear that management did not know of Mrs. Rao’s resignation until such time as she submitted it and the best that can be said on behalf of the Union with respect to this matter is that Mrs. Rao felt that she was under -8- sufficient pressure because of the problems regarding her leave of absence that the only way out she had was to resign. It is interesting to note that Mrs. Rao could have filed a grievance regarding the denial of sick leave but she chose not to. Clearly, the correct route for someone to take when they feel that their employer is mistreating them with respect to things like sick leave and leave of absence is to file a grievance. The real question in this case is whether or not there is sufficient evidence before the Board which shows that the grievor had the true intent to resign. The case law seem to be quite consistent that the evidence must show both an objective and subjective element of the resignation. In other words, first that the employee formed an intention to quit and secondly, he carried out an act which was inconsistent with his further employment. However, notwithstanding the traditional use of this test, it is important to keep track of the fact that the purpose of creating this test is simply so that the Arbitrator can be properly satisfied that the employee had a clear intention to resign and that his actions were not simply an emotional outburst arising out of anger or job frustration that really was not a manifestation of an intent by the employee to permanently sever his employment relationship. Looking at the facts in this case, there is no question that the letter of resignation is clear and unequivocal and therefore, no problem arises out of interpreting the letter itself. However, in addition there is, in the Board’s opinion, ample evidence to support the contention that Mrs. Rao intended to quit on November 29,1985 and that her subsequent actions simply indicated a change of mind rather than the lack of her forming an initial intention to resign. The Board notes specifically the following evidence which would serve as objective confirmation of her letter of resignation: 1. On the same day she resigned, she sent a note to the personnel department asking for them to process the necessary papers regarding her resignation; 2. Mrs. Griffin in which she repeated that she was resigning and indicated no confusion at that time with her decision; 3. rejected it; 4. 5. 6. department wide; 7. The letter itself was well-drafted and internally logical; 8. She had the foresight and rationale to create a false reason in the resignation letter. She did this so that she would have a clear record, in other words, so that she could more easily obtain alternative employment later. One would have thought that if it was an emotional outburst, then she would have used stronger language and made specific reference to the true reason she was resigning. However, she was concerned enough about her future job prospects that she thought up this alternative reason for her resignation; 9. the spur of the moment, without proper thought, you would tend to think that they would resign immediately and not give notice but she recognized her obligation to clean up her files before she left. Moreover, one month’s notice is quite adequate in the circumstances and again shows that she thought out the situation before signing the letter; Following her resignation she had a calm and rational discussion with She received the advise of her colleagues not to resign and she consciously She had prepared numerous drafts of the actual resignation letter; She had a secretary type the resignation letter from an earlier draft; She personally delivered the resignation letter and the distribution itself was She gave one month’s notice of her resignation. Again, if one is acting on - 10- 10. resignation on the Monday following the Friday that she handed in her resignation, that is December 2nd. She was incorrectly told by her Union Steward that she had five days to withdraw her resignation but the important part of this evidence is that she thought Most importantly, she learned of her apparent ability to withdraw her she had five days to revoke her resignation. She then took another three days before handing in her letter of withdrawal. She indicated to the Board that she had firmly made up her mind to withdraw her resignation on December 2nd and simply waited until December 5th because she thought she had that much time. However, this is entirely inconsistent with the Union’s submission that the letter of resignation that was submitted on the Friday did not indicate a true intention to quit. Certainly she had the whole weekend to think things over and if she came to the realization on Monday that she did not intend to quit, it is difficult to conceive that someone would not bring that to the attention of their employer immediately. The actions of Mrs. Rao, however, are entirely consistent with her resigning on Friday and then over the next week deciding whether or not to change her mind. She indicated she thought about it a lot over the weekend and one can assume that she discussed this matter with her family. It was at this time that she realized that she had no other job to go to and perhaps she made herself believe that she really enjoyed her job. On returning to work on Monday she now discovered, apparently for the first time, that she could in fact change her mind, however, she probably at that point had not decided whether or not she truly wanted to resign and that is why she took the extra three days in deciding. Over the next three days she undoubtedly went over in her mind numerous times whether or not she wanted to stay with the Ministry, then ultimately, on December 5,1985 she decided she wanted to stay with the Ministry and thereby submitted her letter of withdrawal. On the evidence this Board finds that - 11 - Mrs. Rao formed a true intention to resign her employment on November 29, 1985 and thereafter she simply was making up her mind as to whether or not she wanted to withdraw her resignation. The Board, therefore, asks that the parties contact the Registrar of the Grievance Settlement Board to arrange a second hearing date so that the following two issues can be resolved: 1. the Deputy Minister pursuant to Section 19 of the Public Service Act in refusing to accept the withdrawal notice of the grievor? 2. case properly refuse to accept the letter of withdrawal of Mrs. Rao? Does the Grievance Settlement Board have jurisdiction to review a decision of If the answer to question #1 is "Yes”, then did the Deputy Minister in this Dated on the 1st day of September, 1988. Barry B. Fisher, vice Chairman