HomeMy WebLinkAbout1992-1372.Kolmann.97-10-21
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ONrARIO EMPLOytS DE LA COURONNE
CROWN EMPLOYEES DE L'ONrARIO
1111 GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (418) 326-1388
180, RUE DUNDAS OUEST, BUREAU 60D, TORONTO (ON) M5G 1Z8 FACS/MILEITELECOPIE (416) 328-1390
GSB # 1372/92
OPSEU # 92E87l
IN THE HATTER OF AN ARBITRATION
Under
THE CROWN EKPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Kolmann)
~;; Grievor
c:-..,.'
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The Crown in Right of ontario
(Ministry of the Solicitor General &
correctional Services)
Employer
BEFORE: L. Mikus Vice-Chair
T. Browes-Bugden Member
F. Collict Member
f.
FOR THE M McFadden
GRIEVOR Counsel
Koskie & MinSky
Barristers & Solicitors
FOR THE M. Nixon
EMPLOYER Counsel
Legal Services Branch
Management Board Secretariat
HEARING November 27, 28, 1996
May 28, 1997
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This grievance was the subject of an interim decision dated September 12, 1995, which denied the
Employer's motion that the grievance be dismissed because it was filed outside of the time limits of
the collective agreement. The facts relevant to that issue of the grievance were set out in the interim
decision as follows:
The grievor, Carol Kolrnann, began her employment as a Correctional Officer (hereinafter
referred to as "CO") at the Metro Toronto East Detention Centre in September of 1984, as a
casual employee. She became a full-time classified C02 in May of 1985 In October of 1989
,-, she suffered an injury at work which was initially challenged but later, in February of 1990,
validated as a compensable injury under the Workers Compensation Act R.S 0 1990, c.
Wll
By letter dated June 26, 1990, the Workers' Compensation Board (hereinafter referred to as
the 'WCB) wrote to the Ministry advising that the grievor was fit to return to work but that
she was to .avoid heavy liftmg. In July of 1990, the WCB revised that letter advising the
Ministry that the grievor was now ready to return to work to her pre-accident job with no
specific restrictions but commenting about steps she should take to avoid a relapse. Her
WCB benefits were discontinued in August of that same year
Subsequent to the June letter, the grievor met with the employer to discuss her return to work.
What occurred at that meeting was a matter of dispute between the Ministry and the Union.
TIle grievor alleges that she was told she could not return to her position as a C02 as long as
she was subject to the restriction on heavy liftmg stated in the letter of June 26, 1994 The
grievor claims she was told she could return to work 10 her fonner position but that she would
be assigned the duties of a clerk. She objected, alleging that male officers in similar positIOns
had been accommodated and that she was being treated differently because she was a female.
Irrespective of what actually occurred at that meeting, the grievor subsequently wrote the
followlOg letter to the Ministry'
August 24, 1990
To Whom it May Concern
Personnel
Due to my present situation and the harassment that I have receIved by both
my employer and the WCB, which has caused me a lot of stress (both
emotional and physical) I wish to mfonn you that I am resigning from my
correctional officer duties at this time. Please take note that this is my two
weeks notice and it is to take effect immediately, ending September 7,
1990 (sic)
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By letter dated August 29, J 990, Mr Small, Senior Assistant Superintendent, Corrections,
wrote the following letter to the grievof'
This letter is to acknowledge that your letter of resignation dated August 24,
1990 has been_!,~ived by the Ministry of Correctional Services. Further,
your oftCr to resign your position at the Metropolitan Toronto East Detention
Centre, effective September 07, J 990 has been accepted by the Ministry
It would be appreciated if you would return your Ministry of Correctional
Services IdentIfication Card, Correctional Officer Unifonn(s), footwear, mail
box key, parking card, copy of Standing Orders and other material related
to your employment to the institution prior to September 07, 1990
)
Thank you for your expected co-operation in this matter
Good luck in your future endeavours.
In December of 1990, the grievor began to write a series ofletters concerning her situation.
The first letters were to Mr Dennis Drainville, MPP from the Lindsay area and Dr Robert
Elgie, who was Chair of the WCB at the time. In those letters the grievor included all of her
documentation concerning her situation, advised them that she felt she had been harassed
because of her WCB claim and asked them to assist her in getting a WCB pension and her
fonner position as a CO2.
The letter to Dr Elgie was referred the Director of the Central Client Services Division who
responded to the grievor's letter on January 24, 1991 He included in his letter a copy of the
July 31, 1990, letter to the Ministry of Correctional Services from the WCB advising the
employer that the grievor could return to her full duties, without restrictions. The grievor
then wrote to the Superintendent of the Metro Toronto East Detention Centre requesting a
copy of that July 31, 1990 letter A response to that letter was sent that same month advising
~ the grievor that there was no such letter on her file but that the Ministry had r~ived a letter
dated September 25, J 990 advising it that the grievor was fit to return to her full pre-accident
duties.
On April 12, 1991, the grievor wrote to the Deputy Minister of Correctional Services formally
requesting that she be reinstated to her fonner position. In that letter she advised him that she
had resigned as a result of harassment. She claimed that she had been deceived and lied to by
her senior supervisors and asked that she be reinstated to the 'Lindsay jail where she believed
she could aVOId the "influence of the senior supervisors at the Metro Toronto East Detention
Centre"
On December 17, 1991, the grievor attended a meeting WIth Mr Robert Dawson, Director of
the Human Resources Management Branch and Ms. Dma Palozzl, Deputy Director of
Correctional Services. At that meeting it was agreed that the grievor would be offered the
next available unclassified positIon at the Lindsay Jail, the Peterborough Jailor the Millbrook
Correctional Centre. She was ultimately hired as a casual unclassIfied CO m the Lmdsay Jail
and continues to work in that capacIty -- I
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However, the grievor was not satisfied with that result and continued to write letters
requesting a reinstatement to her former position. Finally, on July 13, 1992, the grievor filed
a grievance alleging that. she had been harassed by management personnel and asking that she
be reinstated as a C02 at the institution ofher choice. She also asked for retroactive payment
for all lost monies and benefits to the date of her resignation and an apology for her suffering.
The hearing was reconvened on November 27, 1996, to hear evidence on the merits of the grievance.
The Union took the position that, although the next issue for the Board to consider was whether the
grievor quit her job or was terminated, because the grievor had been the victim of discnmination and
harassment that left her no alternative but to tender her resignation, the Board should hear all of the
evidence concerning the allegations' of discrimination and harassment since the evidence on those
issues was so intertwined as to be inseparable. It maintained that the subjective element necessary
to find a voluntary resignation were absent because of that aUeged conduct. As well, it asserted that
the actions of the gnevor following the letter of resignation show there was no objective basis upon
which one could find she intended to resign.
Mr Mously agreed that, in the interests of time, the Board should hear all of the evidence of the
resignation and the allegations of discrimination and harassment but took the position that, if this
Board should find the grievor resigned her position, that would conclude the matter
One of the inCIdents giving rise to the grievance occurred 10 1988 and involved her request for a
maternity uniform. The details of that incident were set out in a letter written by the grievor, dated
June 27, 1988, to Mr Poynter, Acting Superintendent, as follows.
Last year (1987) attached to our pay slIp was an order fonn for our uniforms. It was stated
that we should order on a yearly basIS. On the 12 June 1987 I placed my order for maternity
wear; (1 pair pants, 1 skirt, 2 shirts (Iongsleeves)) Mr Hume (another acting
superintendent) signed my order form and I then took my fonn to stores. Mr Wilcox (head
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of stores) asked if I was pregnant, I replied by saying not at this time.
Later that same day I was informed by Cpl. Carter to go to the shift supervisor's office; (I was
on the afternoon shift on 2B unit with Officer Goldsmith.), Mr Hume, Mr Wilcox, and Mr
Peck were waiting to see me. At this time I was informed that I would not receive any
maternity wear until I am pregnant and I must bring in a doctor's certificate stating that I am
pregnant. Then they will order me some maternity wear, but it will take 3 to 4 months to get
any in, because it will have to be ordered special. At that time Mr Hume cancelled my
maternity order
I am now in my fifth month of pregnancy and have no proper uniform to wear (I have been
out of uniform since 14 March 1988 and stores have known that I am expecting since 21
March 1988 (sic)
Since I could not fit into my issued uniform I purchased my own grey maternity pants on the
9 March 1988 ($48 15 - one pair)
I was approached several times by Mr Hume regarding not wearing my tie.
Friday 29 April 1988 - on 1B while I was working visits
Tuesday 3 May 1988 - on my break in the poolroom
Wednesday 11 May 1988 - on my break in the lounge
Sunday 5 June 1988 - on duties on 3B unit
Then followed a series of seven (7) questions concerning her specific problems ordering maternity
wear and institutional policies in general. The last question, in particular, raised her concerns
regarding discrimmation and harassment. It stated.
7) Why does Mr Wilcox give us females a hard time when it comes to ordering female
uniforms?
When I ordered my skirt he asked me why I wanted one and I said the skirt is more
comfortable - hJS reply was that it was looking for trouble. I have had no problems when I
wear my skirt.
On 17 June 1988 before my 1500 to 2300 shift I was approached by a new staff member
regarding my skirt. She asked if! was the only female with a skirt m the institution, I replied
yes, why? She then informed me that she placed an order in stores for a skirt and was told Jt
would be ordered as long as she doesn't get pregnant afterwards. She asked what he meant,
he rephed the other female who ordered a skirt is now pregnant.
This comment whether Jokmg or not JS consJdered harassment.
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On 7 June 1988 I spoke to Mrs. Warner (secretary to superintendent) regarding an
appointment with Mr Simpson for maternity wear, etc.. I was told that Mr Simpson was
unavailable and Mrs. Warner told me to reorder my maternity wear I then placed a new order
on 7 June 1998. At 1500 hours signed by Lt. D MacKinnon. When I submitted my order
to stores Mr Wilcox said he may not get it, but I insisted that he should try
On 15 June 1988 I checked with stores and was told by Mr Wilcox that he still had not
checked on or ordered my maternity wear
On 16 J~ 1988. I checked with stores and was told by Mr Wilcox he will try to get it in
and it may take 4 to 6 weeks.
On 16 June 1988. I asked Mrs. Warner for an appointment with Mr Poynter She infonned
me that at this time it is not possible and to see Mr Hume. On this date Mr Hume was not
m.
On 17 June 1988. I spoke to Mr Mitchell because again Mr Hume was not in. I asked about
my maternity wear order and if I will be getting an allowance for my own maternity wear that
I have been wearing daily His reply was that my order should be in soon and no allowance
would be necessary
On 21 June 1988 I was infonned by Mr Mitchell that Mr Peck has placed my order for
maternity wear, but does not know when it will be in.
On 14 June 1988. I was assigned to duties on 5A unit for the 1500 to 2300 hours shift by Lt.
D'Vorak. Just before shift parade I was reassigned by Lt. D'Vorak to work 2B unit and
Officer Scott was reassigned to 5A unit from 2B unit.
On 15 June 1988. I was assigned to duties on 5A unit for the 1500 to 2300 hours sluft by Lt.
Meloche. After parade I was told by Lt. Meloche in front of all other officers that I would be
reasSigned to 2B unit and Officer Scott would work 5A unit due to my pregnancy I felt very
humiliated in front of the other officers. It looked like "favors" were being done on my behalf.
Officer Scott also protested this and went to see Mr Mulhern regarding the mcidents in the
past two days.
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On 16 June 1988. I was called m to see Mr Mulhern regarding the incidents in the past two
days.
On 16 June 1988 I was called in to see Mr Mulhern before the start of my shift. Mr
Mulhern infonned me that if I want special duties regarding my pregnancy I must submit a
letter to Mr Hume. I was also told to work were I am assigned to work and that no "special
favors" will be made to move me to another unit and to inconvenience other officers.
I infonned Mr Mulhern that as long as I can I will work were I am assigned to work and that
I never asked to be moved for any "special favors"
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I could not see Mr Hume on this day because he was not in.
I On 21 June 1988. I came to work early to see Mr Hume. He was not in, I was told he is on
vacation. I wanted to know if! would be accommodated as it has been done for other officers
in the past and present. I would like to request that I be assigned to back visits, 0845 to 1645
hours as the log book officer, Monday thru to Friday Reason being that it is a non-smoking
area and I have access to washroom facilities.
On 27 June 1988. I spoke with Mr Hume regarding other duties and was infonned to put my
- request in writing. I also asked if I would be reimbursed for the money I put out for grey
maternity pants and a white maternity shirt and I wanted to know when my regular issued
maternity wear would be in. Mr Hume said that he will check into this for me and then he
would let me know the outcome of my requests.
Later that same day Mr Hume got back to me and infonned me that I will be reunbursed for
the pants and shirt that I purchased and I will be getting my issued maternity unifonn this
week. I am still waiting for the reply on my request for other duties.
Another allegation of harassment and discrimination arose from a work related injury suffered by the
grievor in October of 1989 She was working the 3-11 p.m. shift when she hurt her back lifting some
tea jugs off a trolley The tea jugs are about two and one-half feet tall and hold 200 cups of tea.
When she picked one up she felt as if her back had "popped" It was not until later, after her dinner
break, that she found it hard to move and realized that she had done -more damage than she had
thought. When she went to the washroom, she found she was bleeding vaginally as well. She told
the floor sergeant that she had hurt her back and asked if she could see the nurse. She did not
mention the bleeding. When the nurse advised the gnevor to see her own physiCian, she spoke to
Lieutenant Dave McKinnon, told him she had seen the nurse and that she was leaVing on the advice
ofthe nurse. She saw Dr Wiser, a doctor at the clinic, who told her that she had probably pulled a
muscle, gave her some muscle relaxants and told her to come in the next day for blood tests. The
next day, according to procedure, she called the lieutenant in charge and advised him that she would I
not be reporting to work for her evening shift because she had been hurt the night before and was
under a doctor's care, Between the date of the injUry until early November, she worked a few shifts
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and was off a few shifts on an ongoing basis. Her last shift was in early November She was not
cleared the return to work until June of 1990. Towards the end of October or the beginning of
November her chiropractor advised her to submit a WCB claim.--She called the WCB and was told
that it was the responsibility of the employer to complete the forms and that they would be sent out.
She called the office manager, Mr Peck, and told him she had requested forms from the WCB about
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filing a claim. She later received a call form Sergeant Cressall who told her that she would be taken
off the payroll unless she brought in a doctor's note. That was the first time she had been asked for
any medical information. Subsequently, through the-Freedom oflnformation and Privacy Act, she
obtained a WCB Report of Claim, dated November 20, 1989, stating that the accident was due to
"Lifting tea jugs off trolly -lower back (bleeding)" Under the heading "Type ofInjury" it was stated
"Lower Back - Dr Michale Ingbert (Family - 291-7719) Dr Andrew Noble - Chiropractor - 928-
1124), The form contained the grievor's hours of work per week and her hourly rate. It was signed
by R. Darlington.
On December 4, 1989, the Deputy Superintendent, A. Mitchell, wrote to the grievor's doctor
requesting medical information about her diagnOSIs, her anticipated return to work, and the
likelihood that she could return to her pre-injury assignments. The next day the Deputy
Superintendent wrote to the WCB stating that, because they had not received any incident report
concerning her alleged injury, they objected to her claim. As a result of difficulties establishing her
claim, the grievor filed two grievances dated December 21, 1989, one seeking sick pay under article
52, the other alleging harassment. Her WCB claIm was ultimately approved m February of 1990 and
her gnevance allegmg harassment was settled, She was unsure of the status of the other grievance.
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During that interval the Employer continued to object to the grievor's WCB claim, and, in the
grievor's view, continued to frustrate her attempts to further her claim specifically and harass her
generally For example, when she and her spouse attempted to get the necessary forms from the
Employer, they were met with resistance and excuses. When she tried to return to the workplace to
check her mail, she was denied access. She was eventually granted clearance for the first floor only
That was the first time, to her knowledge, any employee had been restricted in such a way
She was approved to return to work by the WCB in June of 1990 However, there arose a
controversy over her return to work status. The Employer, relying on a letter dated June 26, 1990,
from the WCB, believed she was to return to work with a restriction on heavy lifting. It offered her
a position of office clerk at her C02 rate of pay She suggested ,she be assigned to the Central Room,
which she described as the "brain of the institution" The Employer refused. In any event, the parties
met on August to continue theIr discussions. By that time the gnevor had, through the Freedom of
Information and Privacy Act, received a copy of a letter from the WCB to the Ministry of
Corrections, dated July 31, 1990, stating that she could return to her pre-accident job There was
no mention of specmc restnctlons but the letter did state "She was cautIoned about proper back care
and preventaitve measurments m order to avoid any further relapse" The Employer denied recieving
that letter The Employer maintained its position that it would not return the grievor to her pre-
accident job until she provided a medical opimon about her fitness to return. She was very fiutrated,
She wanted to resume her career and was not prepared to work as a clerk. The next day, as a result
of the Employer's refusal to allow her to return to her posItion as a C02, she wrote out her letter of
resignatIOn.
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When asked why she ultimately decided to file a grievance, she explained that she had been contacted
in March of 1991, by OPSEU concerning her WCB claim and, during that discussion she advised the
OPSEU represntative that she had resigned her position. She was told that, in that case, the Union
could do nothing more for her However, after she began working as an unclassified C02 at the
Lindsay jail, her union steward told her to file a grievance, which she then did.
In cross-examination the grievor allowed that she had not discussed her resignation with a Union
official. She also allowed that no one at the institution had suggested to her that she resign. She did
say, however, that when she was told that if she did not get a letter removing any restrictions on her
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return to work, "she would not be working there", she understood that to mean the she was not going
back to her regular duties. It was her opinion that "the Emplpyer pushed her out" She described
her letter of resignation as a call for help. In her view, after reading the letter, the Employer should
have made inquiries about her reasons for resigning. When asked why she asked for a letter of
reference, she replied that she JUst wanted to see what the Employer would say about her She made
several attempts to talk to someone at the institution, without success. She acknowledged, however,
that she never actually saId she wanted to rescmd her reSIgnation because she did not know she could.
At the conclusion of the Union's case, Mr Mously advised the Board the Employer would be
bringmg forth a motion for non-suit and asked that the Employer not be put to Its election, The
Union objected and it was agreed that the next day of hearing would be set aside for argument on that
issue.
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At the next day of hearing, Ms. Nixon, counsel for the Employer, took the position that the Board's
jurisprudence is clear, this panel should hear the motion and allow the Employer to reserve on its
decision to call evidence, depending on the result of the motion.
The jurisprudence she relied on results from the following GSB decisions. Re Faler and Ministry
of Correctional Services, GSB #218/89 (B Fisher), Re GibsonlPatterson and Ministry of
Community and Social Services, GSB # 319/93,320/93 (A. Barrett) and Re Toplin and Ministry
of Correctional Services, GSB # 2690/92 et al (H. Waisglass)
The first case to decide the issue was Arbitrator Fisher's ruling in the Faler decision (supra). In that
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case, he canvassed the existmgjurisprudence and noted that, generally, the decision to put the moving
party to its election is discretionary and dependent on the facts of the case. Where the moving party
has been put to its election, there have been two reasons advanced for the ruling. The first concerns
the issue of the costs associated WIth adjournmg the hearing to await an decision on the motion. The
second concern dealt with the Issue of fairness and questioned the WIsdom of an arbitrator or judge
expressing his or her views on a case before hearing all of the relevant evidence. It was suggested
in the cases reviewed by Arbitrator Fisher that It gave the movmg party an unfair advantage in that
It would have heard the full argument of the other SIde before calling its evidence.
Arbitrator Fisher, on the facts of the case before him, granted the Union's motion to argue the non-
SUIt without being put to its election, There were additional days scheduled for the heanng and the
parties had agreed to argue the non-suit before those scheduled days. There were, therefore, no
addItional costs mvolved. With respect to the issue of fmrness, the Board made the followmg
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comments at page 7
With the greatest of respect, it seems inappropriate for a Board such as the Grievance
Settlement Board, which is constantly detennining disputes between the same parties, to
express full reasons as to why one party has failed to prove a prima facie case. This would
-( be the equivalent to an "arbitral time-out" in which the opposing party has the opportunity to
find out what the Board is thinking, and then plan its strategy for the rest of the case. In a
situation like this, one would expect a motion for non-suit in every case, as it would provide
a useful advantage in every case to the moving party, whether or not they had any chance of
winning a motion of that sort. -
However, these fears can be eliminated if the Board gives no oral or written reasons in the
event the motion is dismissed. Of course, if the motion is upheld, full and proper reasons
would be provided, as then the motion would end the case. A mere indication by the Board
that the motion was dismissed would not gIVe a tactical advantage to either party
In the next case, that of Gibson /Patterson. (supra), the Board followed the Faler decison,
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commenting as follows on page 2
We heard the union evidence, and Mr Marvy argued the non-suit motion without being put
to his election whether or not to call evidence, in accordance with the procedure of this Board
set out in Faler, GSB #218/89 (Fisher). If we had dismissed the motion for non-suit, we
would not have given written reasons. It is because we allow the motion for non-suit and
uphold the prelimary objection that we now provide written reasons.
Finally, in the Toplin case (supra), the Board, at page 4, said the following:
In the special circumstances of the instant case, we decided not to require election because we
found, in balancing the interests of costs and expedition against the duty of fairness, there is
the possibility that, if the Employer's argument is correct on its merits, considerable delay and
expense can be avoided without impairing fairness. If we had dismissed the non-suit motion
we would not have given the parties our reasons for doing so, orally or in wnting, at least not
until the final award is issued upon closure of the case and then only if requested by one of
the parties.
Ms. Nixon argued that the same result should follow in the instant case, The parties had agreed to
spend that day arguing the motion so there is no issue of extending the hearing or incurring any
I additIOnal expenses. With respect to the issue of fairness, she submitted that the cases referred to
previously stand for the proposition that not providing reasons for the d.ismissal of the motion should
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allay any concerns of the opposing party
Mr McFadden, counsel for the Union, acknowledged the GSB jurisprudence on the issue of non-suit
seems to support the Employer's position but took the position that they represent a change in the
established law on this issue. In the alternative, he submitted that the cases are manifestly wrong and
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should not be followed. He submitted that in all of the three cases relied on by the Employer, the
Board refers to the special circumstances of the case before it. There are no special circumstances
in the instant case to warrant a similiar ruling, Indeed, argued Mr McFadden, the cases seem to have
forgotten the concerns expressed in the cases regarding the unfair advantage one party gains over the
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other if the moving party is not put to its election to call evidence. Mr McFadden expressed concern
about the fact he will have to give the other side a detailed descriptIon of his case before haVIng heard
their evidence. As well, if the motion for non-suit fails, the Employer will have gained valuable
insight into what evidence it will need to counter the Union's argument, something it would not know
absent the motion.
The Board adjourned and rendered an oral ruling granting the Employer's request to argue Its motion
for non-suit without being put to Its election. It was our opinion that the GSB' s jurisprudence on
thts issue is clear and there were no speCial Circumstances that would warrant a departure from that
jurisprudence. The decision was unanimous, although the Union nommee expressed concerns that,
if all panels of the GSB slavishly follow the three deCISions relted on by the Mimstry, a moving party
would never be put to its electIOn. Her concern was that a practice could develop whereby, in
virtually all cases, one party would move for a non-sUIt because there would be no risk mvolved. We
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wish to make it clear that our decision on this issue was arrived at after consideration of the factors
enunciated in the cases cited above. In this case, the parties had agreed to set aside one day to argue
the non-suit. Even if the Union argument had prevailed, we would have had to schedule another day ---
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to complete the case. There was no issue therefore of additional costs or delay that would have
persuaded us to deny the Employer's request. Additionally, in this case, we were satisfied that no
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unfair advantage would result from granting the Employer's request not to be put to its election.
That might not always be the case and, in every instance, a Board of Arbitration would consider all
of those factors in deciding whether to exercise its discretion on the facts of the case before it before
deciding to follow the Faler, GibsonlPatterson and Toplin decisions. We read the comments in
the GibsonlPatterson decision concerning the procedure of the Board to mean that process.
With respect to the argument on the merits of the motion, Ms. Nixon took the position that the Union
has failed to make a prime facie case for the grievor It was her submission that the Union had failed
to cast any doubt on the validity of her resignation, nor had it demonstrated that the grievor had been
discharged. Additionally, it was her assertion that the Union had failed to present any evidence that,
if believed, would have supported her allegations of harrassment. In the alternative, if the Board
should accept that the alleged harrassment occurred, the Union has failed to show that the Employer's
conduct was sufficient to negate her resignation.
With respect to the issue of the grievor's resignation, it was argued that both the subjective and
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objective elements of a quit are present in the instant case, The grievor met with the Employer on
August 23, 1990, to discuss her return to work. She was dIssatIsfied With the results of that meeting
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and the next day, that is August 24, 1990, she wrote a letter of resignation. On August 29, 1990, the
Employer wrote to the grievor acknowledging her resignation. It was not until December of that
same year that the grievor began writing letters about her situation, one to her MPP and one to th~_
Chair of the WCB In neither of those letters does she repudiate her resignation. The first actual
reference to what prompted her resignation is found in her letter of April 12, 1991, to the Deputy
Minister of Correctional Services, some eight months after her resignation. It was not until July 13,
1992, that she actually took steps to repudiate her resignation.
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The Employer submitted that a review of her correspondence demonstrates her subjective intention
to resign. Her letter of resignation cannot be viewed as a momentary aberration or a hastily scrawled
note. It not only sets out her reasons for her resignation, it also states clearly that she is giving two
weeks notice and that her resignation will be effective September 7, 1990 There was no evidence
she was coerced or intimidated into resigning. Her intentions were clear Based on the evidence,
the only conclusion this Board can arrive at is that the grievor voluntarily intended to resign her
~.f: position and took all the appropriate steps to do so.
The Employer relied on the followmg decIsion. Re Anchor Cap and Closure Corporation of
Canada, Ltd. and United Electrical, Radio and Machine Workers of America, Local 512
(1949), 1 L.AC 222 (Finkelman), Re Meadow Park Nursing Home and Service Employees
Union, Local 210 (1993), 36 L.AC (4th)283 (Brandt) and Re Felec Services Inc. and
International Brotherhood of Electrical Workers, Local 1541 (1988), 8 L.AC (4th) 321
(Hamilton)
"
15
Mr McFadden took the position that the Employer bears a significant burden in this case of proving
that there is no evidence before this Board to establish the grievor's case. The Board must, in
considering a motion for non-suit, give the most favourable meaning to the evidence before it and
assume that the evidence is true. If, based on the evidence before it, the Board can infer liability, it
must dismiss the motion.
He conceded that, if this Board should find the grievor quit her employment, the grievance must fail.
However, the evidence is to the contrary The grievor never intended to quit her employment. She
believed that, by resigning, she would initiate an investigation into her allegations which would
r31
ultimately result in her reinstatement. What she intended to do was stop the harrassment. It is not
relevant to this motion whether she was actually being barrassed as long as she truly believed she was. --
Her reasonable belief in those circumstances is sufficient. Her evidence on this point was
unchallenged. Given the absence of a subjective intention to resign, this Board does not need to
consider the objective indications of a quit. Nevertheless, the eVidence before this Board is consistent
with her lack of a subjective intention to resign. She wrote numerous letters seeking reinstatement.
In all of those letters she maintained her position that she was harrassed into resigning her position
and sought a return to her chosen career Given the actions of the grievor, this Board must come to
the conclusion that the Union has established a prime facie case that the grievor did not resign her
employment voluntarily and dismiss the motion on those grounds.
"
16
DECISION
It is the opinion of this Board that the Employer's motion for non-suit fails on the issue of
harrassment and for that reason, consistent with the jurisprudence, we make no comment on the
, reasons for our ruling. For that reason, we have not included all of the evidence or arguments on
that issue.
-
However, the Employer's motion succeeds with respect to the first issue, that is the question of
whether the grievor resigned her employment. The test to be applied was set out in the Toplin case
(supra),as follows.
.[<
The non-suit motion rests on the ground that the Union failed to establish a prime facie case.
In order to succeed, the Employer must show that there is not sufficient evidence for a prime
facie case, which means that there is no evidence of probative value for the defendant, the
Employer, to answer
In deciding a non-suit motion:
"'The issue is whether there is some evidence to support the claim. If there is some
evidence a motion for non-suit must be dismissed. If there is none, it must be I
granted. In perfonning tlus function the judge must lean 10 favour of the respondent
to the motion. In Hall et aI. v Pemberton (1974), 5 O.R. (2d) 438 (C.A.) at p 438-9, I
Jessup J .A. saId for the court:
"The principle which this court must apply is stated by Lord Penzance in
Parfitt v Lawless (1872), 41 LJ.P & M. 68 at pp 71-2 where.he stated. I
I concieve, therefore, that in Judging whether there is any case
eVIdence for a jury the judge must weigh the evidence given, must
assign what he conceives to be the most favourable meaning which
cmibe attributed to any ambiguous statements, and detennine on the
whole what tendency the eVIdenCe has to establish the issue.
.I conceive, therefore, that 10 discussmg whether there IS any case
eVIdence to go to the JUry, what the Court has to consIder is this,
whether, assumlOg the evidence to be true, and adding to the direct
proof all such inferences of fact as in the exercise of reasonable
intelligence the jury would be warranted 10 drawing from it, there is
suffiCIent to support the Issue."
.
;>,
17
In this case, we have no hestitation in finding that there is simply no evidence before us to suggest
that the grievor did not intend to voluntarily resign her employment. She wrote a letter that clearly
--, stated her present and future intention to resign. When she received the Employer's letter
acknowledging her resignation, she took no steps to repudiate that resignation. Indeed, her actions
at the time reinforced her intention to resign. She returned the indicia of employment and she asked
for a reference. Long after her resignation, and during her letter writing campaign to regain her
position, she never denied her resignation. She never acutally said she had made a mistake or did not
intend to resign. In her letters she asked for reinstatement and a return to her fonner position. She
consistently acted as in the manner of someone who had left a job and wanted to return. In her own
evidence she said she quit because she wanted the Employer to do something about the harrassment.
In hindsight, she has decided she made a mistake and asks us to rectify it for her She is attempting
to avoid the consequences of that mistake by appealing to us to undo what she has done.
In the Meadow Park case (supra), the grievor believed she had been harassed and persecuted by
her employer and wrote a lengthy letter denouncing the employer and culminating in her resignation.
She attempted to rescind her resignation five days later and grieved when the employer refused to
reinstate her In that case the gnevance was dismissed and the Board made the following comments
at page 286
It is important in my view to keep clear a distinction between actions that are unwise, foolish
or ill-considered and those which are unintended. In the economy of the 1990's a deCision to
quit one's job would, except perhaps In the case of retirement or where alternative
employment had already been secured, be regarded as a foolish deciSion. It is even more
foolhardy where the individual has no other source of support and is without a home.
Nevertheless, absent other consideratIons, the law expects people to live WIth their decision,
however ill considered they may be. It IS only where It can be said that they did not intend to
resign that the law will intervene to protect them from actIons whIch, on their face, would
--
"
.:;,
18
indicate the contrary
It is my opinion that the grievor in this case subjectively intended to resign her employment
when she wrote her letter of resignation on or about January 15, 1993 She may well have
been motivated to do so by feelings of persecution and harassment by Ms. Kovacs. But that
does not answer the claim that she intended to resign as it could be argued that she saw
resignation as the solution to that problem. She did not want anything more to do with
Meadow Park or Ms. Kovacs and set out to accomplish that objective through severing her
relationship with them.
That is the situation in the instant case. It might well have been that the grievor believed. that
resigning was her only recourse in the circumstances but that does not detract from the fact that she
wrote out, in her own hand, a letter of resignation to take effect two weeks in the future. If her only
intention was toforce the Employer to investigate her allegations, one would have expected her to
repudiate her resignation as soon as she realized her Employer had accepted her resignation without
question. Her actions at the time of and following her resignation confirm her subjective and
objective intention to resign. More importantly, insofar as this motion is concerned, she has never
denied that resignation. In these circumstances, there is no case for the Employer to meet. In short,
there is no evidence upon which we can conclude the grievor's resignation was anything but voluntary
and genuine. For that reason, its motion for non-suit on these grounds is granted.
The grievance is therefore dismissed.
Signed this 21st day of October, 1997
/}dtv ! b}[~ 9 tE:-U~1
owes- ud n Mr F Collict
n Nominee i Employer Nominee
V
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