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HomeMy WebLinkAbout1988-0974.Zahniser.89-03-29 ~ ~" ONTARIO EMPLOYES DE L~A COURONNE ~ ' '~ ~ CROWN EMPL O YEES DEL'ONTARIO GRIEVANCE C,OMMISSlON DE " SETTLEMENT REGLEMENT BOARD DES GRIEFS .- 180 DUNDAS STREET WEST. TORONTO. ONTARIO. M5G 17_8- SUITE2100 TELEPHONE/T~-L~'PHONE ~80, RUE OUNDAS OUEST. TORONTO, (ONTARIO)MSG4ZS.'BUREAU2100 . (416)5~8-0688 · :. -,. .. 0974/88 ': IN THE MATTER OF AN ARBI~RATZON Un~er ~' THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT '~ ' .Before' Between' " "'0P'$'Eu (Bill Zahnlser) :" - and - Grtevor " The Crown in R~gh-t of Onta/~Jo .. (Ministry of c, '~ . _ . . . ,ommuni,_y £~ Social Services) '. Employer Before: N.V. Dis~'anayake Vtce-~hatrPerson .F. Taylor .. Member ' ' I. Cowa.~i Member'.. APPEARING FOR Mitch Bevan - THE GRIEVOR: SrJevance Officer Ontario Ptlblice Servlce ..- Employees.Union APPEARiNG'FOR Wesley N. Emerson THE EMPLOYER: Employee Relations Advisor ;. ,, Ministry. of Communit~ ~ , Social Servdces Hearing: Febr!~ary 9, 1989 Decision This grievance alleges discharge without cause.· · However, after the opening addresses at the hearing, the issues·in dispute were joined as follows: (1) Did Mr. Zahniser quit his employment? (2) If he did, should his request to withdraw the resignati0~ have been approved by the Employer? On the first issue, both parties are in agreement that the act of quitting entails a subjective as well as an objective element. In other words, in order to constitute a'quit an employee must have resolved to. quit (subjective element) and must have acted upon that intention by engaging in some conduct indicative-of his desire to carry his resolution into effect (objective element). The parties are in dispute as to whether these elements are present in this case. On the second issue set Out above, counsel for the Employer submits that once the Board finds that the gr~evor quit, it has no further jurisdiction to embark on an inquiry into whether the Employer ra6ted Properly in rejecting the employee's request to withdraw the notice of resignation. The union submits that the Board has jurisdiction to do so. 3 The grievor was employed. ~t' f~e~Cehtrai Payroll Accounts~'Branch'of the Employer for some three ygars in the classification' of OA~ .2, Data Processing Clerk. Prior to November/December 1986, he work'ed with another full-time'¢lassYfied employee. When that e'mDloyee left ~trtha~° time {He vacancy was not fil'ied ~fbr some three '~0nths. 'in February'l'987, the 'po~'ition was filled but by a contract %mployee The e~idence'~dic~tes that the ~rievor was Unhapp~ about the Employer''s dei'ay in filling the position~' and' the decisibn 'to ap~0ih~ a contract employee rather than a classified employee. The evidence £ also indi6ate~ that the grievor had been generally unhappy~with~his job ~ He felt that the'~orR"~load was too much and wa~ndef 'co~s{ant pressure to meet strict time deadlines. He als0 felt that he wa~.over qualified for the Job he was performing. On'the Friday before the Labour Day.long, weekend in 1988, the contract employee who worked with the grievor informed him that on the Tuesday.af~ter the~long weekend she wa~'starting a new job. Until that time, the grievor had not had any indication from anyone that she would be leaving. The grievor testi,fied'that the news upset him because he 'did not know whether the vacancy created by 4 her leaving will be filled and because even if it is filled 'he will have to train the new employee. During the Labour Day long week-end, the Grievor visited his parents.in Chicago. Both his parents had recently suffered strokes. He testified, and we have no reason to. doubt, that he found visiting his parents to be a traumatic experience. When he returned to work on Tuesday, work had piled up on ~his desk. His supervisor intrgduced him to a new employee who was replacing the one who left and he was asked %o train her. Later that same day, the grievor submitted the following memo to his supervisor: I am terminating my employment effective today. My last day of employment with the Ministry will be 2 weeks from today, 20 September, 1988. The supervisor informed him that she would forward it to the Manager'and Get back.-In about one half hour, the supervisor returned and. gag'e him a copy of his resignation which' had been approved 'by the Manager. There was no discussion at that'time about the grievor's reasons for resigning. '' Mr. Patrick Vianna, Payr611 Manager''of the Branch arranged for a meeti'ng ~w~th' the g~iev0r. Mr. ~ianna testified that it was his'practice ~o~meet briefly with resigning employees. Mr. Vienna stated that during this meeting' ~ September 9, the grievo~ did not come uD with any inf'0rmation as to why he was' leaving and that he did not press the'issue either. SubseqUent'to that meeting, the'staff of the Branch attended a farewell lunch with the griever at a restaurant. Ther~-was also a function· at which ca'es were served an~ ~ presenta't·ion made to the griever. This occurredon September ~0, although it is unclear 'whether it was before· or after the griever sought to withdraw his resignation. In any event, the griever attended these fUnctions and there is no evidence that the ~rievor ~ave any i~dication other than that 'he'was leaving as per his notice. On September 12, 1988, 'the griever attended a meetin~ arranged by Mr. David Millard, a Ministry Human Resource~ Officer. After Mr. Miil~r~'had. eXplained his pension and severance entitlements, the '~rievor signed application forms-for pension refund and ·for severance pay. The grievor had also taken' the necessary tax waiver form ~to his bank for. verification, and returned it to Mr. Millard. After the forms were signed, Mr. ) Millard wen. t th~0ugh his usual exit interview. When the grievor was asked why he was l~aving, he stated that he felt he was.overqualified for the job he was doing and that it was a "dead-end job", that he intended to look for jobs in the private sector, and in other ministries, and that he was also ~gnsidering joining the government.'s temporary service(go-temp). Mr. Millard inquired if the grieyor had mad~ applications for jobs within the Ministry and was told that he had done so, but without success. From this conversation Mr. Millard rea6hed the conclusion ~hat, the grievor had made. a Carefully thought out decision to change careers. At about 2:00 p.m., on September 20, 1988, (the last day of the grievor's period of notice) Mr. Vianna was conducting some job interviews when he was informed that the grievor had sought to withdraw his resignation. Mr. Vianna testified that he immediately denied it. He confirmed this denial in writing by signing a memo to the effect that ."y°ur spee~imemo dated September 20, 1988 is denied as I have filled your pos~ti0n." Mr. Vianna admitted that the memo he signed was inaccurate in that he had not filled the grievor's position. However, he explained that the memo was prepared by his boss' secretary and that he momentarily stepped out from 7 his interviews and signed'it'without'Giving much thought to the wording. TheL evidence indicateg ~hat the grieVor had in the past made two threats to resign which he did not carry out~ Then when then Employer delayed replacing the classified employee in Decembe~ 1986, the grievor submitted a resignation. The grievor testified that on that occasion he actually intended to quit because of his'frustrations with his job. Howe~er',. 'he had second th~ught~ and sought Jo W~thdraw' his 'resignation. Mr. Vianna was very concerne~ about' the' grievor's tactic. He felt that thr'eate'ning resignations were not the pr6per way for a~'employee to deal with disagreements With management decisions or work-relat'ed doncerns. He met with the'grievor. The. grlevor was warned that those tactics'are unacceptable. He was warned .that while his withd~waI was being accepted on that. occasion, if he forwarded another resignati~on he W±ll not be 'allowed to withdraw i't~ Mr. vienna candidly, testified that in'light of this backgrouna' history, once the grievor submitted his resignation on September' 20, 1988, ther~ was little chance of him b~ing' permitted to withdraw it. Mr.. Vianna state~ that even if ~the grievo~ 'had indicated 8 during the meeti.ng with him on September 9, 1988 that he did not really intend to quit but was only protesting about working conditions, he probably would not have Permitted him to reSile from the resignation. The .grievor testified that he had no intention to quit his job when he submitted the resignation on' September. 12 and that his actual intention was to force management to address his work related concerns. In his own w~s he "thought we will be able to sit down and discuss about the situation, like my workload and my classification." The Board finds this testimony to be wholly inconsistent with other aspects of the grievor's testimony.. Thus,. he agreed that between September 6 and September 20 he did not tell anyone about his real 'intentions in submitting his resignation. When he met with Mr'. Vianna on' SePtember` 9 that was the perfect opportunity to do so, but he did not. His explanation was that it was Mr. Vianna's duty to question him about the. reasons for his resignation. However, the evidence is that when Mr. Millard asked that very question, the griev0r told him that he intended to' look for work elsewhere because he felt be'was over-qualified for his job, and gave no indication that his letter of resignation was a ploy to encourage discussion about his problems. Moreover, the grievor admitted under cross- examination that he was in fact'lookinG for work in the pr{vate sector at the time. On the evidence before it, the B~a~d '~ust conclude that the grievor did form an intentid~' to quit his job and expressed that intention in the letter of resignation-dated September. 6, 1988. The'Board cannot accept that the resignation~ ~as a ~ddeh decision brought about by the grievor"s emotional state resulting from his visit with hi~ a~l~inG.~paren'ts or his disappointment about the leaving of his colleague. The evidence is that the Grievor had ~b~en displeased with his job for some time and had' previo~sly considered leaving it. The announcement on Friday that his co- worker was leaving may have upset~him and aggravated his concerns. ~0wever, h'~did hot react immediately He had the !on~-w~ek-end to assess the'situatiOn. ~He decided his course of action and submitted his resignation. In So-doing, ?.he even had the presence of~ mind to Give 2 weeks notice as required by s. 19 of the Public service Act. .. The Board finds .not only that the Grievor formed and expressed an intention to quit, but he also carried out his intention by his subsequent conduct. Thus, by his silence during t~e meeting with~ Mr. Vianna and by 10 his response.to Mr. Mi!lard's.inquiry he confirmed .his intention to quit. He further made application for his pension and severance entitlement and attended farewell functions arranged by his co-workers. This conduct is only consistent with his continuing intention to carry out his resignation. Thus we f~ind that both the subjective and objective elements of a quit are clearly present here. His attempt to withdraw the resignation. can only be characterized as a last minute change of heart on his part. Having concluded that the ~rievor quit his job, the Board turns to the issue of whether the Employer acted properly.in refusing to allow the grievor to withdraw his resignation on the last day of the period of notice. · The counsel for the grievor drew the Board's attention to section 19 of the Public Service Act which reads as follows: 19. ~A persoq may resign from the public service by giving his deputy ~inister two weeks notice in writing of his intention to resign, but he may, by an appropriat~ notice in writing and with the approval of his deputy minister, withdraw the notice at any time before its effective 'date if no person has been appointed or selected for appointment to the position that will become vacant by reason of his resignation 11 The Board sees no merit in counsel's submission that under s. 19 the Deputy Minister must personally deal with a request to withdraw a notice of resignation.. Section 23 permits the Deputy-Minister to appoint a designate and Mr. Vianna testi~fied that he was the Deputy Min~ster"s designate. Onl the question of the 'Board's ~urisdiction to review a decision to refuse wi~thdrawat of a notic~ of .resiGnation, the parties merely tookopposinG positions, but made no legal submissions, in support of their respective positions. It appears that the Board has not hitherto decided this issue, although 'we were advised that~the Board'is expected to decide this legal issue in an unrelated proceeding which is on-GoinG. Fo~ our purposes, if we are to decide this issue, we would be inclined to reconvene a further hearing to receive full submissions on the issue of jurisdiction. However, in the interest of expedition' and in the light of the particular facts before us we have decided not to do so. Instead, our conclusion is that even ff we assume'that we have. jurisdiction to review a decision made under s. 19, we do not find the Employer's decision in the particular circumstances here' to be improper cr unreasonable. 12 As noted before, the Grievor had for some time indicated to management that he was frustrated with his job. He felt over-qualified and had concerns about his .classification and his workload. Yet he did not raise these concerns with management directly or consult with his trade union, in order to find out if he had grounds to grieve. Rather than going through the channels · available for resolving work related concerns, he resorted to his own tactics. Mr. Vianna, as. the Manager of the Branch, had Serious concerns about this conduct on the grievor's part, which must necessarily be disruptive in any organization. Mr. Vianna explaihed his concerns to the grievor and warned him that such conduct will not be tolerated again. He was told clearly that if he resigned again, he will not be allowed .to withdraw it. With· full knowledge of the Employer's concerns .the grievor submitted a further resignation. Then as justification for his request for withdrawing the notice the grievor claimed that he did not actual·ly intend to quit but was onl~ engaging·in the very same conduct that · he had been warned about previously. The Board has found on the evidence that the grievor in f~ct d±d quit. 'We also find that having quit, the grievor cannot r~asonably, expect the Employer to allow him to withdraw, ~hen the r~ason or expianation he has to offe~..is the very same conduct that the Employer had previously stated will not be tolerated. - The'Employer has an institutional responsibility to operate 'an efficient public service. We agree with Mr. Vianna that the tactic adopted by' the grievor is intolerable. Unfortunately, from time to time an employee may feel frustrated with working conditions and may disagree with management'decisions. There are 'a ~umber of avenues to deal 'with these. The grievor did .not pursue any of these, but decided to resign, and this despite ~a clear warning that he will not be a!low~d to Withdraw a further resignation. Unfortunate as the result of this proceeding may be, the grievor must bear the consequences of his ~own conduct.' The Board has no alternative but to find in light of the evidence that 'the grievor quit his position and that the-Employer did not act improperly in refusing to accept his withdrawal of the notice'of resignation. We emphasise that in making'the latter finding we have not 'decided the jurisdictional issue raised by the parties. Accordingly, this grievance is hereby dismissed. Dated this 2~h day of k~arch , 1989 at Hamilton, Ontario. ~.~imal V. Dissanayake Vice-chairperson :~ember I. Cowan Member