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HomeMy WebLinkAbout1988-0886.Morley.90-03-07 " ONTARIO EMR£OY£S DE LA COURQNNE CROWN EMPI. OYEES OE L'ONTARIO ~- ,~,~- GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 780 DUNDAS STREET WEST, TORONTO, ONTARIO M5G 1Z8- SUITE 2100 TELEPHONE/T£L~'PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG I~.8 . BUREAU 2100 (416) 598.0688 886/88 IN THE RATTER.OF AN ARBITRATION Under THE CROWN ENPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEHENT BOARD BE'~EEN: OPSEU (P. Morley) Grievor - and - The Crown in Right of Ontario (Ministry of Tourism and Recreation) BEFORE= M.V. Watters Vice-Chairperson F. Collom Member M. O'Toole Member FOR THE G. Richards GRIgVOR= Senior Grievande Officer Ontario Public Service Employees Union FOR THE h. Horton E~PLOYER= Staff Relations Officer Management Board of Cabinet ~. HEARINGS: April 12, 1989 April 14, 1989 January 11, 1990 DECISION This proceeding arises from the grievance of Ms. Paula Morley dated September 16, 1988 which claimed she had been terminated without just cause. At the commencement of she hearing, the Board was advised that the parties had narrowed the issue requiring resolution. Specifically, the sole issue left with us was whether the grievor quit, or was discharged from, her employment. The Employer asserted the former; the Union the latter. We were further informed that if we foun~ the grievor had not quit, the parties were agreed as to the remedy which should follow such a finding. The parties disagreed as to which side had the onus to initially lead evidence as to the events giving rise to the grievance. The Employer argued that the onus rested with the grievor to prove that she did not resign. The Union, in response, submitted that the facts of the case were consistent with discipline having been imposed and, for that reason, the Employer should proceed first. After considering the respective submissions , the Board required the Union to first lead evidence to establ-ish that there was no resignation. In so concluding, the Board relied on the award in Re Governm~ot Of The Province Of Saskatchewan (Department Of Hiqhways) and Seskatchewan Government Employees Association, 25 L.A.C. (20.)'439 (Zarzeczny, June 1979) and on certain excerpts contained in C~nadiqn Labour Arbitration (3rd.ed.), Brown and Beatty at paragraph 7:7100. The grievor was initially hired in the spring of 1987 to work as a hostess in restaurants managed by the Niagra Parks Commission (N.P.C.). Such work is seasonal in nature lasting approximately from the ~eginning of .April to early October in any given year. In the 1988 season the grievor worked from April 16th to September 13th as a hostess at the Queenston Heights Restaurant. The events which precipitated the grievance, of which more will be said below, occurred on the latter of these dates. But for these events, the grievor would have been employed until the end of the season. The Queenston Heights Restaurant provides full table service..Until quite recently it has operated on a seasonal basis. In the last two (2) years, however, the Employer has attempted to keep it open all twelve (12) months of the year. At the time material torthis dispute, internal management at the restaurant consisted of Ms. Leslie Booth, Manager; Ms. Marianne Holly, Assistant Manager; and Ms. Jean Smith, Dining Room Supervisor. The front-line staff was then comprised of hostesses, waiters-waitresses, bar-tenders, cashiers, and what was ~eferred to as bus-help. This last group of employees are primarily responsible for clearing the tables of dishes and cutlery such that they may be made ready for the next customer. Bus help employees are generally students who are hired to oerform this resoonsibility in the peak season lasting from May to September. Given their status, these student helpers do not assist in the restaurant after Labour Day. 2 As noted above, the grievor worked at the Queens~on Heights Restaurant as a hostess. Her duties were set out in a document filed with the Board as exhibit '4' It is unnecessary to review each of the listed duties in detail. Generally, hostesses must ensure that everything Js properly set up in :he restaurant and that it is ~n an orderly and clean state. Additionally, they must welcome the patrons to the premises and seat them at one of the tables in either the front or back section in a fashion. In so doing, the hostess' must be sensitive to the workloads of the various waiters and waitresses within the restaurant. A% the beginning of each session, each hostess is provided with the aforementioned list of'duties together wi:h a larger package of House Rules. They are specifically advised therein that linerups are'to be avoided when there are empty tables in the restaurant as such could discourage customers from coming in for a meal. Further, they are cautioned against "standing around idle" during busy times as customers might think they were doing nothing to al]eviate the waiting period. It is of some significance to note that the written material provided to ~he hostesses does not specifically refer to busing as being part'of their job. The expectation of the Employer is that such task is the primary responsibility of the bus help. The Board accepts, however, thc evidence of all of the Employer witnesses who consistently testified that the staff within the restaurant must work as a team. That is , they are all expected to "pitch in" and help bus the tables if the restaurant is busy and customers are waiting to be seated. It is apparent from the evidence that hostesses, including this grievor, and management have bused tab]es when the need has arisen. This demand for' team work is recognize~ in the tipping system within the restaurant as ten percent (10%) of the waiters-waitresses tips are set aside and subsequently apportioned between the hostesses, bartenders, cashiers, bus held and supervisors in recognition of their efforts to clear the tables. This pot of tips is divided periodically on the basis of total hours worked. The Board was given no reason to reject the Employer's assertion that bus tips were designed, inter alia, as an incentive for all staff to get involvedI with the clearing of tables for the ultimate benefit of the customer. In summary, the Board is satisfied that hostesses are required to assist with the clearing of' tables when such cannot be efficiently completed by the bus help and other service staff. We state this conclusion at this juncture for, as will become apparent below, the present dispute has arisen because the grievor was not prepared to engage in busing to the extent required by the Employer. The grievor worked between 11;15 am. and 8:00 pm. on September 13, '1988. Such period encompassed both the lunch and dinner hours, As at this point in September; all of the bus help had returned to their studies, It was the grievor's recollection that the day in question was "a very slow day". She later described it as "average" and "a little below" in terms of the number of customers in the restaurant, She denied that it was a "busy day" and that customers were lined up waiting for tables to be cleared. The grievor admitted that between 12:00 noon and 1:30 pm. she was twice asked by Ms. Booth to bus tables. In e~ch instance, She replied that she did not consider her involvement necessary in that the four (4) waiters-waitresses had everyth:r~g under control and did not require her assistance, Indeed, the grievor believed that a couple of them were then standing arb.nd ; at one of the work stations. This assessment was somewhat surprising given that Ms. Booth herself was forced to bus a table. Further, the grievor conceded that there were tables to be cleared at the time of the second request. ' The grievor testified that when asked to bus by the Manager, she asserted that such task was not'part of her job as a hostess. Subsequently in cross-examination, she stated that it was part of her job "to a degree", This was clarified to mean situations in which the restaurant'was especially busy such that the other service staff could not efficiently clear the tables. It was the grievor's opinion that she should be the person to judge whether her assistance was necessary. On her way out of the restaurant that evening, the grievor was asked to see Ms, Booth in her office, Once there, the Manager asked her whether she was willing to help with busing in the future, to which the grievor answered "No", Ms, Booth then questioned her as to whether she was scheduled to work on the 5 next day. It was the grievor's recollection that, upon being assured that she was scheduled to come in on September 14th, Ns. Booth stated, "Don't bother coming in, that's it." She denied the suggestion of counse.1 for the Employer that Ms. Booth had actually stated, "Everyone has to pitch in and cooperate; if you are not prepared to help out, don't bother'coming in." The grievor stated that she perceived the Manager as being "very final" in her decision. She denied that at the end of the meeting, she realized that continued work as a hostess depended on her willingness to bus, This again is somewhat dif¢icult to ~omprehend given that she also replied in cross-examination that the choice between busing and not busing was bluntly put to her during the course of this exchange. At another point in cross- examination, the grievor denied that anything had been said on the subject of busing. The grievor also testified that the conversation with Ms, Booth "shocked her" as they had not had any prior conversations on this subject. She did admit to a discussion with Hs. Holly on or about September 8, 1988 wherein the issue of bus-help tips was addressed, She denied that Ms, Holly had then told her that she must bus tables in order to receive a portion of the tips. It was her recollection that this conversation focused primarily on the method of allocating the bus help tips rather than on the obligation to bus. It was the grievor's evidence that she did not argue the point with Ms. Booth during their evening meeting, Instead, she 61 simply said that she would return to :he restaurant on the next morning to collect a letter offering a ful' explanation of the situation. The Board was informed that she wanted such documentation for purposes of U,I.C. On t~e morning of September t4, 1988 the grievor received a Seascnal Performance Appraisal Form from Hs, Boo%h, This form, which was filed with us as exhibit '5', is structured so that employees may De rated on thirteen (13) job factors including 'Gets Along With Staff' and 'Work Performance' Two (2) of th~ :oxes en the document given to the grievor were ticked off indicating, that in management's assessment, she made "little effort to contribute to overall group effort." In terms of work performance, it noted "inconsistent quality; often does less than acceptable, amount of work." The following comment was found in the area titled 'Supervisor's Comments': "On 3 separate occasions Paula has failed to follow her supervisors instructions the latest being of last night Sept 13/88. Paula was asked to help her co-workers bus tables and she refused, It is imperative for all staff to follow instructions of their supervisors, Without basic co- operation our facility can't operate properly, Work here ~r Pau~ but she has ~ ~l~w supervisors instruction~" (emphasis ours) The area on :he form entitled 'Future Employment' was lef% incomplete. This section consists of three (3) boxes to indicate (i) recommended for rehire; (ii) proDation~ry rehire; and (iii) not to be considered. The grievor was asked to read and sign the appraisal form. She refused the la,=er request as she did not 7 agree with the assessment contained therein. It was her evidence that she did not then discuss with Ms. Booth the events of the preceding evening, She stated further that notwithstanding the last sentence of the sup~rvisor's comments emphasized nothing was said about the existence of available work. cross-examination, however, the grievor conceded that she realized she was then at a crossroads. More ~articularly, the grievor was aware that her insistence on not busing would determine if she had work. Additijnall¥, she conceded that she "had a choice to make, whether I was working or not". At another point in cross-examination, the grievor asserted she did not know that the work available was conditional on her busing tables. The Board was advised that the Seasonal Performance Appraisal form serves two (2) purposes. Firstly, it is used as an appraisal for all seasonal staff at the end of their season. Secondly, it is also employed at any time during the work term to identify certain aspects of an employee's performance requiring comment. Employees receiving an unsatisfactory appraisal at the end of the season are not invited to return for the next season, although in certain circumstances a probationary rehire could be recommended, if on the other hand, a satisfactory appraisal is rendered, the employee will be invited to work the following season. The grievor testified that she contacted the Chief Steward, Hr. Angeto Giajnorio, on the afternoon of September 14th. 8 Subsequent to this initial contact, Mr. Giajnorio advised that she contact Ms. Booth if she was prepared to return to work. The grievor apparently made such approach but was informed that a meeting had been arranged on the subject for the evening of September 14th. The grievor stated that she and the Chief Steward attended such meeting which was held at one of the other restaurants. Ms. Booth and Mr. Robert McIlveen, Assistant to the General Manager, were there representing the interests of the Employer. The grievor's recollection of what transpired at the meeting was somewhat vague. She stated that hostess duties were discussed in a general fashion. She did not initially believe that busing had been raised as an issue. Later in cross- examination, she claimed that she could not remember if it had been touched on. Subsequently, the grievor conceded-that her Steward may have addressed the topic in the context of busing being an added job duty. She did recall, however, that she replied in the affirmative When Mr. McI1veen asked if she would be willing to come back to work. The grievor also clearly recollected that she raised the issue .of compensation at the meeting. She indicated in her evidence tha~ "she was jus~ going for the day she had been off". The claim for compensation was not resolved on that evening, The grievor testified that she d,d not go into work on September 15, 1988 as she was waiting =or ma~agement's decision on the issue of compensation. She stated that she was subseq;ently advised by .Mr. Giajnorio ~n that same day that compensation would not be forthcoming. The grievance in this matter '~as signed on September 16th. it was received by the Emp]oyer on September 22nd, After the meeting, with Ms. Booty on September 14, 1988, the grievor called the secretary at the restaurant and asked when she would be getting her U.I.C. forms. These forms were ultimate]y received~ on or about September 21st. The Record of Employment of the same date noted "other" as the reason for issuance of the document. The letter indicating a "quit' had not been inserted. into the box available. Immediately be]ow was the following comment: "Please contact Hfs. D. Whitehouse, Human Resources Dept. (Ex.37), for further information." The grievor testified that she met with Ms. Whitehouse, the Human Resources Director of the N.P.C., to determine why this wording had been inserted onto. the reco~d as, in her estimation she had been dismissed. The grievor denied Ns, Whitehouse indicated during the course of such meeting that a job was still available for her. The grievor informed the Board that prior to the events oF September 13, 1988, she had enjoyed her job with the N.P.C, When 10 asked by her counsel whether she would have continued at same if told "you have to bus, like it or not," she replied "within reason". The grievor asserted that she had never intended ~o resign. Mr. Giajnorio was called upon to give evidence on behalf of the Union. He confirmed that his involvement in the dispute commenced as of September 14, .1988. It was his recollection tha~ his initial conversation with the ~rievor included reference to the topic of busing. He stated in cross-examination that she told him "in so-many words" that, "if she was going to bus, she wasn't going to be a hostess." It was Mr, Giajnorio who asked for the meeting with Mr, McIlveen and Ms. Booth. As with the grievor, he could' not be sure whether the issue of busing, had been specifically addressed during the meeting. He recalled a general discussion as to hostess duties and that Mr. Mcllveen stated that orders should be followed and that any differences arising therefrom could be pursued subsequently. Mr. Giajnorio believed the grievor indicated that she would follow orders "within reason". He advised that he asked Mr. Mcllveen whether the grievor's job was still there to which he replied "Yes, provided she obeys orders". Mr. Giajnorio further recalled it was made clear that compensation would not be paid to the grievor. From his perspective the dispute was at a standstill at the conclusion of the meeting. He agreed with counsel for the Employer that "it came down to the issue of compensation" in that 11 this subject kept the grievor from returning to work. Mr. Giajnorio conceded that the claim to compensation might have been made on September 21st. rather than on September 14th as stated by the grievor. A claim, on the former date would have clearly increased the desired level of compensation. Further had the meeting been conducted on September 14th as claimed, the period of time that the grievor was off work would have been significantly compressed. Subsequent to the meeting described above, Mr. Giajnorio had further discussions with Mr. McIlveen in an effort to have the grievor returned to her job. He testified that in all of these exchanges, Mr. McIlveen stated that the "job was still, there" but there would be no compensation. This message was conveyed to the grievor who ultimately elected to pursue the grievance. Hr. Giajnorio candidly testified that if the decision had been his, he would have advised the grievor to return to work and argue the issue thereafter. The Board was left with the impression that he did not have the final determination as to how this matter was processed. Ms. Booth, the Manager of the Queenston Heights Restaurant, testified that September 13, 1988 was a busy day, particularly during the lunch period, Hatters were made worse in this regard by the absence of the bus-help staff. As customers were lined up . waiting for tables to clear, she herself assisted with busing o~ 12 tables. It was during this period that Ms. Booth twice asked the grievor to assist with this task. She recalled that the grievor responded to the first request by doing "a tittle bit of busing." Ns. Booth subsequently noticed that the grievor was just standing a-ound while guests were still waiting for tab]es. Her second call fcr assistance led the ~rievor to assert she "was a hostess, n2t a bus person." She therefore refused to "pitch in" as requested. Ns. Booth subsequently attended at an afternoon meeting where she informed NcIlveen of :he grievor's refusal to follow instructions. He advised that t~e grievor be told %ha% sqe must cooperate with other staff to ensure the restaurant was run on an efficient basis. This advice led directly to the 8:00 pm. meeting referred to earlier in this award. Ms. Booth testified that she there explained to the grievor that everyone must "pitch in" and help. She then asked if the grievor was working the next day and would she help as needed. It was her evidence that the grievor said that she would not assist with the busing. Ms. Booth then told her "don't bother coming in tomorrow unless you ar® going to help". It was clear in Ms. Booth's mind that she was presenting the grievor with an option. She was adamant that this was not couched in terms suggesting a dismissal. We were advised that the Manager did not have the requisite authority to dismiss. Ms. Booth confirmed the meeting of the next morning. She advisec that she had sought Mr. McIlveen's input as to what ~3 should be given to the grievor in terms of the documentatio~ requested. He advised her to use the Seasonal Appraisal Form and suggested the language to be inserted therein. This document was given to the grievor for her review and signature. ~s noted, the grie¥or refused to sign same as she disagreed with it's co,tents. It was Ms. Booth's perception that the form indicate~ there was a job available for the grievor as long as she was prepared to follow supervisory instructions. She believed that t~e grievor was being presented with a choice. ' Ms. Booth denied that she intended to fire the grievor and stated that she would have taken her back that morning had she indicated a willingness to assist with the'busing of tables. She noted that the 'Future Employment' section of exhibit '5' had not been filled in as she was not "finalling Paula ," In her estimation, the document simply noted points to be improved upon. After the grievor's request to the secretary of the restaurant later that same afternoon, Ms. Booth prepared the grievor's final pay record which was filed with us as exhibit '9'. She indicated that she ticked off 'other' on the form as being the reason for leaving given that she believed the grievor had decided to quit. The form 'does not contain a box specifying such a reason. This document subsequently formed the basis upon which the Payroll Department ~repared the Record of Employment. Ms, Booth stated that her next involvement in this dispute occurred on September 21, 1988 when she attended a meeting 14 chaired by Mr. McIlveen at which the grievor and Mr. G~ajnorio were in attendance. This was the same meeting which the grievor believed occurred on September 14th. It was her recollection that Mr. McIlveen discussed the nature of the duties expects= of a hostess and explained that all staff must assist where necessary. He noted in this regard that the work place woulJ be in a state of chaos if everyone could select those tasks which they wished to perform, Ms. Booth testified that the grievor was asked if she would bus tables. It was her recollection that the grievor responded by saying it would be her decision as to when she would become involved with such task. She also recalled that the grievor claimed compensation for time lost. Ms. Booth left the meeting thinking that the grievor and Mr. Giajnorio would further discuss the matter on the following day. Mr. Mcllveen confirmed his initial discussion with Ms. Booth on the afternoon of September 13, 1988 wherein he advised her to inform the grievor that busing was part of her job. At that point, they did not consider the consequences that might flow from a continuing refusal to bus. Ne next heard from Ms. Booth on t~e morning of September 14, 1988. At that juncture, she advised him of the meeting on the preceding evening and informed him that the grievor had returned to the restaurant intent on receiving some documentation concerning the dispute. It was Mr. Mcllveen's understanding that Ms. Booth had told the grievo¢ "don't come in unless you are willing to bus". He did not have 15 the imDression that she said "don't come in" with the de~ree of finality suggested by the grievor. Mr, McIlveen fur%her confirmed that he instructed Ms. Booth to use the Seasonal Appraisal Form for purposes of the written record sought by the grievor. He assisted her with the language to be incorporated into the document and specifically requested that she note there was work available for the grievor at the restaurant assuming she was prepared to assist with the busing of tables. While Hr. HcIlveen then had the authority toVdismiss, it was his evidence %hat he never intended to exercise such power. Indeed, he did not view the situation as a matter of discipline. Rather, he saw it as alcase of clarifying the job requirements for the grievor. He anticipated that the grievor would return to work once this was done. Mr. McIlveen was contacted by Ms. Booth later in the afternoon of September 14th. She informed him that the grievor had called the'secretary and asked for her separation papers. He concluded from this conversation tha't the grievor was not interested in performing the hostess job if it included busing. He stated, however, that he would still have been. prepared to take her back as loQg as she would bus. On September 20, 1988, Mr. McIlveen was contacted by Mr. Giajnorio who asked whether the grievor could return to work. The Chief Steward was advised that she could, but that the job would include the clearing of tables when asked. Hr. Giajnorio called back approximately one-half 16 hour later to advise that the grievor wanted compensation for lost time. This request dismayed Mr. McIlveen as he could not comprehend the basis for the claim. He was not inclined to send a mixed message to the grievor, in his opinion, the payment of compensation would have reinforced the grievor's belief that she Bid not have to bus. It was his further conclusion that the N.P.¢. was not responsible for any loss of time occasioned by the grievor's decision not to bus. Mr. McIlveen therefore made it clear that compensation would not ~e paid. Mr. Giajnorio subsequently asked for a meeting to give the parties another opportunity to resolve the matter. This meeting was scheduled for September 21, 1988. The date and time for same wan noted in Mr. McIlveen's appointment book. Mr. M¢I]veen stated %hat at %he meeting he tried %0 recreate the incident of September 13, I988 giviag both the grievor and Ms. 8ooth a chance to present their comoet~ng points of view. Me also spoke about the "philosophy" of the restaurant with particular reference on the need for staff %0 assist each otheF as members of a team. It was emphasized that this was especially important givem the attempt by the N.P.C. to keep the facility open on a year roumd basis. Mr. McIlveem also advised those in a{tendance that chaos would result if employees were entitled to pick ~nd choose their responsibilities at the work place. He also alluded to the grievor's right to resort to the grievance procedure if she felt she had beem given an improper assignment. 17 Mr. McIlveen testified that he received a less than definite answer when he asked the grievor whether she wculd bus tables in the future if such was requested by a supervisor. It was his recollection that the gr~evor replied she would do it on her own terms. The grievor also continued to press her claim for compensation during this meeting. At the conclusion of the meeting, Mr. McIlveen felt that the grievor hac a choice to make. She could return to work, without compensation, on the basis that busing would be pa?formed or she cculd elect to not return. If the former option was selected, he recognized that the questions of compensation and job assignment were matters %hat might be pursued through the grievance mechanism. On September-22, 1988, Mr, Mcllveen received .another telephone cal] from Hr. Giajnorio in which he was advised that the grievor's position had not changed. The Chief Steward was informed that work remained available for the grievor if she was prepared to accept the terms of the job. Mr. HcIlveen indicated that the g~ievor ultimately had to decide which option to pursue. Her election was made clear on the following day when the grievance was received by the Employer. Hr. Hcllveen was the designee at the Stage 2 meeting held on September 29, 1988 in respect of this grievance. He informed the Board that it was still then open for the grievor to return. Initially, he stated that the door would have been closed after the Stage 2 response. He conceded, however, that he might still have considered t~king her back in early October, t988. 18 Ms. Debbie Whitehouse, Human Resources Director of the ~,P.C., testified that she also had a meeting with the grievor on or about September 21, 1988. At such meeting the grievor expressed some concern Qver the delay in .receiving her Record of Employment. She also then inquired as to why "other" had been ticked off on the form and as to what the Human Resources Director might say if subsequently contacted by U.I.C. ~ersonnel. ~ith respect to the former, Ms. Whitehouse inOicated that the ~orm had been completed by the Payroll ~epartment rathe- than Cy ~erself. With respect to the latter, she told the grievor that she would state there was a disagreement over an incident that was "not yet resolved", and that it was her understanding the grievor had a job if she was willing to work as a member of a team, this being her choice to make. This explanation was subsequently provided to the Unemployment Insurance Commission pursuant to their request for clarification, Ms. Jean Smith,. the Dining Room Supervisor during the summer of 1588, testified as to an exchange with the grievor in July or August of that year concerning the subject of busing. It was her evidence that she entered the dining room during a busy period and noticed the grievor standing at a side table, When asked by the supervisor to clear tables, the grievor replied, "No, I don't do busing". The refusal was not discussed at the time although both Ms, Booth and Ms. Holly, the Assistant Manager, were informed of same, Ms. Smith was not cross-examined. 19 Ms. Holly also testified in respect of an incident occurring on September 8, 1988 during a busy lunch hour period. It was her recollection that the grievor would not bus tables even though there was a line-up at the door. After helping seat ~he customers, Ms. Holly told the grievor that she ~ad to pitch in o¢ she would not receive her share of the bus-help tips. The grievor apparently then commenced with the clearing of tables. During the exchange the grievor stated, "why should I bus tables, it is not my job". This incident was noted on a recice card system used by this witness and Ms. Booth to record incidents occurring in the restaurant. It is clear that conflicts exist in the evidence given by the respective parties. These conflicts relate, inter alia,' to the following: (i) whether the restaurant was busy on September 13, 1988; (ii) what was said to the grievor during the evening meeting on that same day; (iii) whether there had been previous discussions with management personnel concerning the subject of busing;'(iv) the date of the meeting between the grievor and Mr. Giajnorio and management personnel; and (v) whether such personnel consistently indicated there was a job' available for the grievor. After considering all of the evidence and the manner in which it was adduced, the Board has been persuaded to accept the evidence of the Employer in all instances of conflict. We find that the evidence of the grievor was generally somewhat vague and self-serving. She lacked a specific recollection on 2O many of the matters referred to. In contrast, we thin~ that the evidence presented on behalf of the Employer was ;lear, forthright and consistent. Given the above conclusion, we accept as a :act t~at the restaurant was busy om September 13, 1988 to the exten~ that the grievor should have assisted with the c]ea~ing c: tables. While there were four (4) waiters-waitresses on $~aff 5hat ~ay, a~l of the bus help had returned to school. This i~ itself ~ suggestive of the need for others in the restaurant to pitch in and help. The fact that Ms. Booth assisted with the b~sing c~ear]y demonstrates that a need existed at the :1me. We have no doubt that, in the scheme of things at the restaurant, the grievor should have cleared tables prior to the ~anage¢ having to engage ~n such task. Finally, we note that the ~rievc¢ conceded there may have been tables to c]ear at the time 0¢ the second request. The Board also accepts Ms. Booth's version of what was said to the grievor during the evening meeting on September 13, 1988. We do not find any evidence consistent with an intention to ;hen dismiss the grievor. Indeed, such an act was beyond the scope of the Manager's authority. We think that the tenc~ of Per remarks should have been clear to the grievor, that is, that she was required to engage in busing as such was an expected city on the part of a hostess. The Board has been persuader that Ms. Booth's 21 statement was conditional in nature and suggested the continued existence of :he job, If we are wrong in this regard, the subsequent meetings of September 14th and 21st clearly served to convey to the grievor that work was available as a hostess if she was willing to bus. We have no doubt that Mr. Giajnorio was aware of that fact and that he so advised Ms. Morley, In a similar vein, we accept that the grievor had Deen spoken to on earlier occasions with respect to the subject of busing. We were not given an),' sound reason to reject the viva voce evidence of either Ms. Smith or Ms. 'Holly. Our conclusion from that evidence, anO the other testimony presented, is that the grievor did not Iconsi.der busing to be part of her job as a hostess. If compelled to engage in .the task, she clearly wished to do it on her own terms. Indeed, this was virtually conceded by the grievor. The Board is confident that the grievor was fully aware of the significance placed by management on the need to bus as requested. We are also satisfied that the grievor was fully aware of the nature of the choice then confrontin9 her. Lastly, it is clear to us that the meeting in question took place on September 21st and not on September 14, 1988. The former date is more'consistent with the sequence of events and was noted in Mr. McIlveens appointment book. We found Mr. Mctlveen to be an extremely credible witness. His evidence was precise and did not reflect any hostile animus towards the grievor. To the contrary, he appeared to be fair throughout. The significance of this date is that the grievor may then have been claiming considerably more than one (1) day of compensation in her pursuit of time lost. 22 It. was the position of the Union, in belief, that the grievor had been dismissed. It w~s submitted that the decision to quit employment vests in the employee and that the grievor, in this instance, had no reascn to quit. We were urged to find that the Seasonal Appraisal Form (exhibit 5) constituted a letter of dismissal given the effect which it coui~ have on the possibility of future employment. Further, it was asserted that the filing of the grievance and the involvement of the Union-was consistent with a belief on the part of the ~rievor that she had been dismissed. Alternately, the representative of the Union argued that the grievor had been confronted with an inappropriate and unfair choice of either to obey or resign, in his submission, this was tantamount to a dismissal. The Union .claimed that the proper choice in this case should have been to obey or be disciplined. The following awards were relied on by the Union: Re IDt'l Woo~grkQrs of America And Canadian Gypsum Co, L1;d., 19 L.A.C. 341 (Weiler, October 1968); Re University of Guelph And Canadian Union of Public Employees. Local 1334, 2 L.A.C. (2~) 351 (Shime, April 1973); Shilman and MCSS, Public Service Grievance Board 0008/88 (Brent); and Re Sun Oil Employees' Ass'ri. and Sup Oil C'o. Ltd., 19 L.A.C. 365 {Weiler, February 1968). It was the position of the Employer, in response, that the grievor voluntarily elected to quit rather than return to the position and bus. Counsel suggested that the grievor was fully aware she had the option to return. It was noted that the 23 grievor had conceded she real'ized she was at a crossroads and that the decision to bus, or not, would Ceterm:.,e if she would work. We were urged against finding fault on the part of the Employer for leaving the. ultimate choice ~o the g.rievor. In this regard, emphasis was placed on the considerable perioo of time given to the grievor to determine her in%entions. Fucther, counsel submitted that the Employer did not ac% in an unreasonable or arbitrary fashion when it askec the 9r~evor to clear tables. Hostesses, including this ~rievc~, had undertaken this responsibility in the past. It was arguec that if the grievor wished to contest management's right to assign work, the pPeferable course of action would have been to return to the job and subsequently grieve the assignment. Additionally, it was submitted that the Union had not.demonstrated a positive ac~ on the part o¢ the Employer which could be considered as a termination. Indeed, counsel argued that the p-e-requisite elements of the doctrine of constructive dismissal were absent in this case as the Employer had not engaged in aKy action to effect a fundamental change in the employment relationship, In summary, we were asked to conclude that the proper inference to be drawn from all of the evidence was that the grievor !ntended, and did in fact, qui~ her employment. The following awards were relied on in support of this position: International Woodworkers of America. Local 1-71, in re Canadian Forest Products L~mited. Woss Camp, Enqtewood toqqinq Division, 5 L.A.C. 1755 (Jamieson, 1954); Heath, GSB 424/82 (Draper); Smith vs. ViKinq Helicopter Limited, 24 Supreme Court of Ontario File No. 540/87 (decision of Finlayson J.A, released March 13, 1989); and Re Miracle Food Mart Steinberg ~nc, ~Ontario) and United Food & Commercial Workers, Local 175, 19 L,A,C. (Jd) 65 (Brunn~r, May 1985), The issue requiring resolution by this 3pard is whether the grievcr quit, or was discharged from, her employment at the Queenston Heights Restaurant. Given that the respective parties did nc~ categorically express their intentlcns, we have been compelled to assess all of the facts presented so as to be in a position to draw the reasonable inferences arising therefrom. In this regard, we are in agreement with the following excerpt from the award in Re U.A,W. and Leepo Machine Products Ltd. (1966), 17 L.A.C. 33: "This case, along with the other ~wo, seems to establish the principle that only if the employee's acts reflect on actual intention to quit can the employer interpret them as voluntary severance. Zf the company deems certain acts to be quitting where this is not a reasonable interpretation of their significance, this constitutes a discharge." We take from this statement that a Board confronted with this type of issue must carefully assess all of the facts established to glean the, real intention of the grievor. If such facts do no% support a subjective intention to quit, in conjunction with objective action taken pursuant thereto, the employee cannot be taken to have voluntarily severed their employment relationship. This result flows from the premise that the right to quit vests 25 with the employee. Absent the necessary intention, the employer has no right to deem certain conduct as a quit. This general proposition is also stated in Re U.E,W.. Local 512 and Anchor Cap & ¢l¢sure CORD, of Can~¢¢ Ltd. (1949), I L.A.C, 222 (Finkelman). This Board has not been persuaded that the Employer undertook any positive action to dismiss the 9rievor. As stated previously, we do not believe that Ms, Booth's comments to the grievor on the eyening of September 13, ~988 should hage been perceived as an oral dismissal. Rd%her, we think they were designed to make the grievor aware that she had to engage in busing i'n order for the restaurant to run efficiently. The conditional language employed did not, in our judgment, suggest that work was not available for the grievor. Again, if we are in error in this conclusion, the subsequent course of events, particularly the meetings of September 14 and September 21, 1988, should have made it apparent to Ms. Morley that the Employer did not intend to deprive her of the opportunity to work as a hostess. Indeed, we accept Mr, McI1veen's evidence that he was prepared to have her return to the restaurant up ~o the date of the Stage 2 response, and perhaps later. This opportunity was consistently communicated to the grievor by management personnel. The Board is confident, on the evidence presented, that both the grievor and Mr. Giaj~orio were well aware of the Employer's willingness to have her resume her responsibilities at Queenston Heights. Additionally, we do not find exhibit 5, the Seasonal 26 Aopraisal Form, to represent a letter of dismissal. It was clearly not given with that intent. It is our assessment that the Employer was simply trying to convin=e the grievor of the need to follow the super, visor's instruct'ors pertaining to busing. We note that the 'Future Employment' section of the for~ was left incomplete and that it specifi¢ ' ~a.ly s%ated %here was work there for the grievor were s~e wil'ing tc follow such instructions. This is consistent with the Em~'oyer's assertion that the grievor could have returned to %he wc¢k place to =irish the season, There is no evidence indicating tqat she would not have been employed for the following season assuming the busing issue had been resolved. There is no evidence in this instance of :he Employer fundamentally altering the terms of employment such that the doctrine of constructive dismissal could be i~voked. The Employer's insistence on the grievor performing busing was within it.'s managements rights, We have previously eetermined that such a responsibility fell within the range cf duties that could reasonably be expected of a hostess, in any event, %he award in Shi)m~n suggests that the doctrine of constructive dismissal would no% be applicable to proceedings before this Board because Of the grievance and hearing procedures available to the grievor. Lastly, we do not think that the grievo¢'s assessment of the Employer's conduct, as reflected in her grievance alleging a dismissal, is sufficient to defeat the *easonable inferences 27 drawn from the evidence, tn our ju~gment, the grievor was cognizant of her right to return to ;he work place both on the date she signed the grievance and the date of it's recept by the Employer. As indicated,.$he was ap;rised of this on September 21, 1988. The same message was conveyed to Mr. Giajnorio on the following day during his telephone conversation with Mr. McIlveen. These assurances as to the existence of the job are inconsistent with dismissal. A grievance alleging a dismissal cannot change that fact, After considering all of the circumstances of this case, we have been persuaded that the grievor intended to quit her job as a hostess at the Queenston Heights Restaurant. This conclusion flows from our finding that the grievor refused to work for a prolonged period of time notwithstanding that she was aware that work was available for her. This intention was perhaps first reflected by her request for separation papers on the afternoon of September 14, 1988. Taken alone this request could be consistent with either a quit or a dismissal. Here, however, the demand for the documentation was made after the grievor had twice been minformed that there was work available for'her. We note that on that same afternoon, she confided to Mr. Giajnorio that she did not want to be a hostess if she had to bus. We find that this intention was further evidenced by the grievor's decision not to return to work after the meeting of September 21, 1988, In our judgment, the evidence justifies the inference that Ms. 28 · Morley was not committed to work as a hostess if she had to respond to her supervisors instructions to bus tables. In all of her contacts with management, within the period being considered, she attempted to reserve the right to determine for herself when she would pitch in and bus tables. Additionally, the grievor createc another barrier to her return by insisting on compensation when it was clear that such was not going to be forthcoming. Her refusal to return to work in the context of the surrounding facts has led us to conclude that she made a definite decision to quit. Were this not the case, the grievor could have returned to her responsibilities and subsequently filed a grievance with respect to those issues concern~'ng her. This option had been raised by Hr. Mc[lveen, although he elected against pushing the point as he felt it inappropriate to interfere in matters involving the Union. We have no doubt that the grievor understood this option,, and the consequences which might flow from her conduct, given her prior involvement in the affairs of the Union as a local steward. In the final &nalysis, we think the Employer could reasonably determine that the grievor intended to sever the employment relationship given her actions in the time frame material to these proceedings. We have not been convinced that any significance should be placed on the Employer's use of "other" rather than "quit" on the Record of Employment form given the evidence as to how the form was completed. More specifically the document simply reflected the fact that the internal Final Pay Record sheet did not at the time of the grievance have a box to be ticked off in the event of a quit. 29 The Canadian Gypsum award concerned a cla:m that the grievor had been unjustly terminated, In that instance the grievor and the foreman engaged in a heated exchange with respect to the former's operation of a machine.- When told that he was operating the equipment incorrectl), the grievor advised the foreman to stop bothering him to which the latter replied, "I can run it if you can't and if you don't like it, you know what you can do." The grievor then left the section and went to see the mine superintendent for purposes of effecting a transfer to another foreman. When this change was not immediately forthcoming, the grievor refused to return to his work place. He was subsequently told to leave and to collect his pay and U.Z.C. forms. Zt was the Employer's submission that these circumstances constituted a quit. The Board disagreed with this position as it found that the grievor did not have the subjective intention of severing his employment relationship with the company. It was noted that his continued efforts were directed to getting assigned to another section in the mine. In the opinion of the Board, the management officials could not have reasonably believed the grievor wished to voluntarily quit his job. While the 9rievor's action might have warranted some discipline, even discharge, the Board found the Employer acted improperly in deeming such ~o reflect a quit. This Board agrees with the logic and result of Canadian GYpsum. We think however that on the facts of the case now before us, the Employer could reasonably infer that the grievor 3O intended to , and did indeed quit. As stated above, we believe it material that the grievor absented herself from the work place for a considerable period of time notwithstanding her knowledge that she was at liberty ~o return. Further, in this instance, there was no positive act on the part of the Employer. The grievor simply made a decision against performing the job if it required busing and if compensation was not forthcoming. The award in Canadian Forest Products is on first reading supportive of the Employer's position. There the grievor, who had worked steady days since commencing his employment, was directed'to work the night shift of January 12, 1954. On receiving this assignment, the grievor spoke to the Grievance Committee and attempted to meet with the camp superintendent without success. Subsequently, he failed to report for the night shift in question nor did he work thereafter. It would appear that as late as January 16th, the grievor was aware that the Employer was willing to put him back to work if he agreed to work the night shift. The Board on these facts found that the grievor had quit. The decision was premised on a finding that the grievor's individual employment contract and the company policy gave the Employer the right to assign the grievor to whatever shift it chose. The result in Canadian F~rest Products has been the subject of some criticism. The @oard in the Sun Oil award considered that it was unreasonable to infer on the facts presented that the employee no longer wanted to remain with the 31 company, The Board in University Of Guelph concluded that the case might have been better decided on the basis of insubordination, and an appropriate disciplinary penalty levied rather than the drawing,of an inference that the events constituted an intention to quit. We would tend to agree that it was perhaps unreasonable to infer a quit from the limited fac:s cited in the Canadian Forest Products award. Zn this instance, however, there is significantly more evidence of a persuasive nature supporting an intention on the Dart of the grievor to sever the employment relationship. The fact that the Employe¢ here could also have imposed discipline for the grievor's refusal to bus does not in itself minimize the impact and effect of such evidence. This case is also distinguishable from the awards in University of Guelph, Miracle Food Mart, and Sun Oil. In the first of these awards, the grievor specifically stated that he quit. The Board there found that the subsequent turning in cf the grievor's uniform, after the emotion o~ the situati'on had abated, confirmed the intention to quit employment. It is clear that in this case, the grievor did not specifically state the words "I quit". Her intention to do so has been inferred from ~he other facts presented, In Miracle Food Mart, the two employees resigned after being presented with an option of resigning or being suspended with the possibility of crimina~ charges being initiated for fraud. It was not suggested that the 32 grievor was confronted with an analogous ult-matum by this Employer. Lastly, in Sun Oil, the Employer accepted the employee's initial statement that they quit 'n the face of the purported retraction of same. We would agree that the Employer was excessively Quick in the acceptance of t-e resignation in that instance. It is obvious, from the evioence acduced, that the same cannot be said of this case. For al! 0¢ the ahnve reasons, ~%he grievance m~s~ be dismissed as we find that the grievor electe: to O~it her employment at the restaurant. Dated at Windsor, Ontario this 7th day of March, 1990, ~ M.V. Watters, Vice-Chairperson ~/ F. Coltom, ~ Member .~ ~ -~l~rembe r ~4, O' Toole, ~3