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HomeMy WebLinkAbout1976-0034.Murray.77-02-21. CROWN ~MPLOYEEL '416 964-6426 GRIEVANCE SETTLEMENT &OAR0 Between: IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETiLEMENT BOARD Miss S. J. Murray And Ministry'of Revenue Before: D. M. aeatty - Chairman Mary Gibb - Member S. R. Hennessy - Member For the Grievor P. Cavalluzzo, Counsel Golden-Levinson Barristers For the Employer Hearings E. C. Farragher Labour Relations Supervisor Ministry of Revenue November 1, 1976 January 17, 1977 Suite 405, 77 Bloor Street West Toronto, Ontario Suite 405 77 Bloor Street Nest TORONTO, Ontario M5S lM2 -2- In the grievance she has filed with this-Board, Miss S. J. Murray who was employed as a Clerk 3 General by the Ministry of Revenue, complains that she was improperly dismissed from her employment on December 15, 1975. By this grievance, Miss Murray seeks to be reinstated in her former employment with full compensation and without the loss of service credits. In resisting her grievance, the employer countered that at no time had it ever initiated any action to sever Miss Murray from her employment. To the contrary it was the employer's assertion that, on the evidence described below, Miss Murray had in fact, on the day in question, voluntarily resigned from her position in the Public Service. The issue so joined, and prior to the adducing of evidence before this Board, certain preliminary matters were settled at the outset of the hearing. In the first place and while it agreed it would not raise any objection as to the timeliness of her grievance, the Ministry took the not unreasonable position, in view of the prolonged delay on'the grievor's part in filing her grievance with this Board, that, at the very least, it could not be made responsible, should liability be established, for any damages which might arise subsequent to the initial hearing before this Board on November 1, at which the griever had requested a further adjournment in these proceedings. In addition, and given the nature of the issue between them it was agreed, in the circumstances, that Miss Murray bore an initial onus and therefore was obliged to lead her evidence first to - 3 - prove that in fact she did not resign from her employment. Put affirmatively, it was agreed by the parties that, as in all dismissal cases where the matter is put in issue, and in order for this Board to be properly seised of her grievance, the grievor was obliged to establish a prima facie case of unjust dismissal by proving, in addition to the existence of the collective agreement, and the fact of employment, that her termination was 'occasioned by a positive act on the part of the employer. Re Best Pipe Company Limited L.A.N. February 1974 (Beatty); Re Chrysler Corporation of Canada Ltd. (1952) 4 L.A.C. 1291 (Cross). And see generally Re drown brothers Ltd. (1973) 2 L.A.C. (2d) 347 (Weatherill)/ Re Baton Broadcasting Ltd. (1971) 21 L.A.C. 7 (O'Shea); Re International Nickel Company - of Canada Ltd. (19681, 19 L.A.C. 371 (Schiff). Those preliminary matters aside, the parties adduced their evidence with respect to the circumstances leading up to and surrounding the grievor's purported resignation. From that evidence, it is a matter of record that the grievor first cormnenced employment in the Public Service In June 1970. From her own evidence it would appear that because of certain impediments and constraints she felt were being placed in her career path, she decided in the spring of 1975, to seek a transfer from her position in the Ministry of Community and Sccial Services. Although initially desirous of obtaining a . promotion from that MInistry, u ltimately on March 10, 19i5 she decided to accept a lateral transfer to a Clerk 3 General position with the Ministry of Revenue. For the first six in -4- months of her tenure ih,that Ministry, Miss Murrsy's employment experience was relatively uneventful. More specifically and for the vast majority of the time between March 19, 1975 and October 1, 1975, Miss Murray worked as Clerk 3 General in the Accounts Payable unit in the Financial Services Section under the supervision of Mr. J. Sloane. In that capacity she apparently had what she perceived to be a good relationship with Mr. Sloane and had received, in July, a positive employee appraisal from him. However, on or about October 1, 1975 her circumstances began to change. On that date, as a result of a reorganization and merger of certain portions of the Ministry's operations, MiSS Murray's job functions were reassigned from what had been the Financial Services Section to the Administrative Services Section. For her part, as a result of a memorandum initiated 'by Mr. Guiffre, her Director, this reorganization resulted in Miss Murray'being physically relocated from the ninth floor under Mr. Sloane's supervision tom the first floor under a Mr. W. Bonthron.~ Although, as described, this reassignment did not or was not intended to affect her job duties in any way, .from Miss Murray's perspective, this transfer was not perceived as a positive or beneficial one. In the first place, it was her claim, which was challenged by the Ministry's witnesses, that as a result of this physical relocation she was obliged to work in an environment in which there were several employees whose habit of smoking cigarettes detrimentally affected her ability to work. Miss Murray testified that because the physical , - 5 - environment on the first floor was much more confined she suffered particularly from the smoking conditions and that she repeatedly complained about it to her supervisors. Indeed, and on this there is agreement, on October 1, 1975 the day she was moving to the first floor, she had a verbal exchange with Mr. Guiffre on the elevator about this matter which resulted in the latter's issuing her a letter of reprimand for what he regarded to be her rude and insolent remarks. Moreover and in addition, Miss Murray testified that a major cause of her dissatisfaction with- her transfer to the Administrative Services Section stemmed from the fact that she was never able to r establish a viable and. positive working relationship with Mr. Bonthron. According to her, which he denied, Mr. Bonthron constantly watched and monitored her every actjon, her comings and goings and even her use of the phone. As well, she described several occasions on which she felt Mr. Bonthron'had unfairly criticized her,and on one occasion issued her with a letter of reprimand for poor work performance. However and with respect to this latter item, although at the hearing Miss Murray disputed many of the allegations contained in it, it must be noted, and indeed Miss Murray conceded, that she had done nothing to challenge its veracity at the time it was issued. In addition to her relationship with Mr. Bonthron and her discomfort and dislike of the smoke caused by her fellow employees, Miss Murray was also anxious and concerned about the treatment she received with respect to the work assignments she was given after her transfer to the Administrative Services Section. In a word, Miss Murray felt she was being victimized. Specifically' it was her complaint, which was denied by the employer, that after two or three weeks under Mr. Bonthron's supervision, almost two thirds of her work was taken out of her area of responsibility without any explanation. In addition she claimed that when she came back from her holidays in mid- November she discovered that she had been removed entirely from her former job and had been assigned to one in the service area. Moreover she claimed that just as she was acclimatizing herself and learning to enjoy that position, she was, early in December, reassigned back to the ninth floor to work again under Mr. Sloane's supervision. While not disputing these latter assignments the employer's witnesses, and particularly Mr. Guiffre,testified that they were bona fide assignments dictated by the operational requirements and needs of the Ministry. Indeed, it was Mr. Guiffre's assumption that the reassignment of Miss Murray in early December to work under Mr. Sloane's supervision would have been welcomed by her, given her positive experience in working with him in the Past. In fact; however, Miss Murray's return to Mr. Sloane's supervision proved to be a negative and cour$erproductive one. In the first place, and as noted, Miss Murray had begun to enjoy her work in the service area and was not particularly anxious to be transferred anywhere. In addition and shortly after she returned to the ninth floor her anxieties were heightened when she discovered that the phone on her desk had been removed. Indeed and although she was advised by Mr. Sloane -7- that her phone had been removed only as part of-a general reduction of telephone services in the Ministry and that there was a phone on the adjoining desk which was available for her use, her fears and insecurities were not al layed. Furthermore her confidence in and relationship with Mr. Sloane was undermined when in her view the latter had humiliated her in front of the rest of the staff by unfairly criticizing her with respect to certain aspects of her work. It is in that context and against that backdrop, that Miss Murray's anxieties were further aggravated when on December 12, she was advised, through a clerical supervisor, that she was "to report to the Director's office" later that afternoon. Although the meeting had in fact been arranged by Messrs. Sloane and Bonthron in order to review with Miss Murray their appraisal of her performance over the preceding six months, Miss Murray was not apprised of those facts until later in the day. Accordingly and because of her fear of what might transpire "at a meeting in the Director's office" Miss Murray decided to seek out the advice of Mr. Lambert, a staffing officer in the Ministry's personnel branch, in order to determine what course of action she should pursue. Ultimately, and after she discovered that Mr. Lambert was not in his office, Miss Murray returned to her office where Mr. Sloane met her and advised her of the true purpose of the meeting. In the result and having missed the opportunity to review her performance appraisal on that day, Mr. Sloane advised the grieVOr that they could reconvene the meeting on the Flonday following. c 1’ -&l- Again., according to the grievor, she was greatly perturbed about the prospects of meeting with Messrs. Sloane and Bonthron to review her employment performance. According to her, she felt the appraisal was unusual, out of the ordinary and that in fact her job was in serious jeopardy. Indeed,.so much did the prospect of meeting with Messrs. Sloane and ,Bonthron bother and worry her that on the Monday morning she decided that rather than report to them, she would again seek out the advice and counsel of Mr. Lambert. From all accounts this meeting, which took place in a seminar room located near Mr. Lambert's desk, lasted approximately an hour to an hour and one half. However, and apart from their agreement as to the duration and place of'the meeting, the evidence of Miss Murray and Mr. Lambert as to what transpired at that meeting, is, on most material points, entirely contradictory. For her part, Miss Murray claimed that she went to see Mr. Lambert to seek his advice as to what she should do. She testified that when he saw her, he initially laughed and queried whether "they" knew she was with him. According to her, after they had talked for some period of time she said to Mr. Lambert that she guessed that the only thing she could do to extricate hersel~f from.her difficulties in her job would be to resign. She testified that the only reason she raised this possibility was in the hope that he would offer some alternative possibilities that she might pursue. However, according to her, when she made this suggestion he said that he agreed that would be the best thing she could do, that if she didn't leave she would Abe fired, and that because she failed to report for two scheduled meetings she would be disciplined and would be "receiving all -9- kinds of re,pistered letters". Furthermore, she-testified that immediately after she raised the possibility of resigning, Mr. Cambert rushed out of the room and secured a piece of paper on which she wrote out her resignation. Indeed she testified that all the while she agonized over whether she should complete the resignation, Mr. Lambert, who is by no means a physically diminutive person, stood over her in an overbearing fashion. In short, according to Miss Murray, Mr. Lambert frightened and subtly coerced her into preparing her letter of resignation, which she claimed she signed against her will. Moreover, it was her evidence that after she had completed her letter of resignation and as she was leaving the office, Mr. Lambert cautioned her not to change her.mind. Miss Murray tesified that she took this to mean that she could not and would not be permitted to alter her decision. The description painted by Mr. Lambert with respect' to what transpired at that meeting is substantially different. He testified that this was the third occasion on which he had seen Miss Murray since November 18, 1975 and that he was therefore fully familiar with her circumstances. He claimed that for most of the meeting they reviewed Miss Murray's previous experience in the Ministry and,.as in the previous two meetings, considered a variety of alternatives that she might pursue to alleviate and extricate herself from her difficulties. Specifically, according to him, they considered the two possibilities of Miss Murray either obtaining a transfer out of her present position and/or - 10 - returning to-her position with Mr. Sloane with the intention and expectation that things could be worked out between them. Mr. Lambert testified that Miss Murray categorically refused to consider the latter alternative and that he advised her, as he had in the past, that she would unlikely be able to secure a transfer until such time as her work record improved sufficiently so as to make her an attractive applicant to some other supervisor. In the result it was his evidence that it was in this context, of his having advised her tha't he could not simply "arrange" a transfer for her and of her being adamant in her refusal to return to Mr. Sloane's section, that she offered the suggestion that the only other possible route out of her difficulties would be to submit her resignation. He testified they discussed this possibility very briefly and then he went out and secured a piece of paper on which her resignation could be written. He claimed that subsequently he left the room on two further occasions to check a calendar in order to select an effective date for her resignation and to secure an application for her to obtain the benefits to which she was entitled under the Public Service Superannuation Act. Moreover, it Was Mr. Lambert's evidence that at no time did he suggest she would be disciplined or discharged if she did not resign, nor did he caution her not to change her mind. In short Mr. Lambert emphatically denied that he in any way pressured or influenced her in her decision to resign. To the contrary he claimed that that decision was hers alone, was made in a calm and deliberate manner and was - 11 - the natural,consequence of their previous discussion in which the options of a transfer and a return to her section had been effectively foreclosed. Indeed it was his evidence that although at the outset of the meeting Miss Murray was visibly upset and in an emotional state, by the conclusion of the meeting and after she had effected her resignation she was calm and relieved. At the close of this encounter and following Mr. Lambert's advice, Miss Murray returned to her home. It was Mr. Lambert's feeling, which Miss Murray apparently shared, that no useful purpose would be achieved by her returning to work either that day or indeed any other day prior to December 31, the date he proposed as being the effective date of her resignation. However, according to her evidence, within half an hour after she had returned to her home she realized that in fact "she wanted to return" to work, but because of Mr. Lambert's parting comment she "didn't think she could change her mind". In the result she did nothing further with respect to her resignation on that day. Indeed on Tuesday December 16, rather than immediately pursuing her avowed intention to return to work, Miss Murray decided, for reasons never explained, that she would first attend a choir practice of the Ontario Public Service Choir, of which she was a member. In fact Miss Murray testified that it was only after this practice was completed that she decided she would approach the Deputy Minister to see if her resignation "could be rescinded". However and ii - 12 - although she was able to meet with the Deputy Minister for approximately an hour to explain the events described above, nothing by way of a substantive solution to her problems was generated at that meeting. Indeed, ultimately the Deputy Minister advised Miss Murray by letter dated.January 6, 1976 that he was unable to find a position elsewhere in the Ministry that would be suitable for her and that accordingly he had decided to accept, with regret, her decision to resign. It is against that description of events that this Board must determine whether in fact the grievor resigned her employment on December 15, 1975,0r whether, as she claims, she was dismissed without just cause. In making this determination we are mindful that arbitrators have consistently perceived and characterized the right to resign or quit one's employment as being peculiar and personal to the employee. That is to say,~ we recognize that the right of resignation is a mechanism which is available to the employee to-terminate the employment relationship and it is not open to an employer to deem an employee to have quit or resigned from his employment over the latter's protestation Re Canadian Gypsum Co. Ltd. (1968) 19 L.A.C. 341 (Weiler); Re Northern Telephone Ltd. (1968) 19 L.A.C. 129 (Pa2mer). PUt simply, we are in agreement with the principle, enshrined in the arbitral jurisprudence in the private sector, that an employee can be found to have quit his employment only when he or she voluntarily comes to and acts upon the intention to sever or terminate the employment relationship. Re .%cfiillan Blcedel - 14 - of Guelph (&~rnJ; Re Precision Valve ICamdaJ Ltd. f1971J 23 L.A.C. 231 fSi~nql, or an attempt to pressure his employer to accede to certain demands Re XemptviZle District Rospital (19751 8 L.A.C. (2dJ 144 KJ’COTVIO~J, than.an intention to quit one's employment. In short, the erection of such a framework, by which the intention of an employee may be assessed, ensures that only expressions and conduct on the part of the employee which reflect a considered and deliberate decision to sever one's employment, will be found to embrace an intention to resign. Against those principles it is possible to and arbitrators have distinguished between two factually unique, though conceptually related circumstances in which an employer may claim that an employee has quit his employment. In the first of these the employee does not expressly declare her intention to quit her employment and the arbitrator is asked to draw that inference from a certain course of conduct or behaviour. such as a prolonged absence, which was pursued or adopted by the employee. A review of the reported awards in the private sector reveals that in virtually every such case arbitrators have recognized ~that standing alone, and without more, conduct, such as a prolonged absence,is ambivalent and ambiguous in its purpose and have, accordingly, refused to draw the inference that by such conduct the employee intended to quit her employment. By way of contrast, in the second category of cases, in which the employee has expressed some intention to sever his or her - 13 - Industries Ltd. (1974) 5 L.A.C. (Zd) 337 (Weiler'). go characterized, it is clear, and a review of the arbitral jurisprudence in the Private sector COnffraJs, that ultimately the task confronting an adjudicator in settling the issue of whether an employee has resigned her employment is to ascertain the true intention underlying and motivating the employee's behaviour. Re University of Guelph (1973) 2 L.A.C. (2d) 351 (Shime); Re Canadian Gypsum co. Ltd. (1968) 19 L.A.C. 341 (Weller). Moreover in plumbing for the actual intention of the employee, we share and subscribe to the principle which has, from the earliest awards, been uniformly adopted in the private sector that an act of resignation embraces both subjective intention to leave one's .employ and some objective conduct which manifests an attempt to carry that intention into effect. Thus, and as one board expressed it: The act of quitting a job has in it a subjective as well as an objective element. An employee who wishes to leave the employ of the Company must first resolve to do so and he must then do something to carry his resolution into effect. That something may consist of notice, as specifically provided for in the Collective Agreement, or it may consist of conduct, such as taking another job, inconsistent with his remaining in the employ of the Company. Re Anchor Cap & CZosure Corp. of Canada Ltd, 119491 1 L.A.C. 222,223 (Finkekznl. The rationale and purpose for constructing such a dual standard should be obvious. Very simply, from their experience, arbitrators have recognized that in certain contexts a simple assertion of resignation may reflect more a sense of anger or frustration on the part of the employee, Re U~ttvers~t:~ - 15 - I 0 employment,.‘arbitrators have been much more inclined to accept such an expression as embracing the true intention of the employee and have come to the ronclusion that he or she did in fact intend to resign his or her employment. In these circumstances, and assuming that the expression by the employee does not simply reflect the employee's anger or frustration, (Re University of Guelph (Supra); Re Precision Valve (Canada) Ltd. fsupra)) or an attempt to induce the employer to concede - certain demands (Re Kemptville District Hospital (Supra)) the usual issue between the parties is whether there iS any confirmatory conduct on the part of the employee which satisfies the "objective" element of the dual standard noted above and which manifests a continuing subjective purpose of quitting her employ. Re sun Oil co. Ltd. (1968) 19 L.A.c. 365 (Weiler). However in the circumstances of this case, because of the grievor's allegation that Mr. Lambert pressured and subtly coerced her into resigning her employment, it is manifest that if the employer's claim is to prevail we must-satisfy ourselves that both the "subjective" and "objective" elements of the standard referred to above have been satisfied and support the conclusion that the grievor voluntarily intended to sever her employment. Applying this analysis to the circumstances of her case, we would note, at the outset, that in sharp contrast with virtually all of the reported awards in the private sector, Miss Murray both verbally, and in writing,expressed her intention to resign 0 I_ - 16 - from the Public Service. In such circumstances, and assuming i- . for the moment that such an expression was not secured by some act of duress, misrepresentation, fraud, undue influence, etc, on the part of the employer, or the result of some mistake on the part of the employee, we are of the.view that, apart from any other conduct on her part, such a verbal and written expression of an intention to resign, taken together with her application for the return of her contributions towards her superannuation benefits, is clear and convincing evidence, satisfying both elements of the test noted in the Re Anchor Cap & CZoez&e Corp. ~of Canada Ltd. lSupml decision, of a continuing subjective intentlon to resign from her employment. That is to say, in the absence of any evidence that she was induced to prepare ar sign those documents under duress or under some mistaken assumption as a result of some misrepresentation or fraud or undue influence that was practised upon her, we believe that such a written resignation should be taken, on its face, as representing her actual and true intention to quit her employment. Such a conclusion not only accords with connnon law traditions as to the meaning and effect of signed documents generally, fLrEstm-pi V. F. Graucob ~td. fig33 2 K.B. 3941, but as well conforms and coincides with what little arbitral opinion has considered the issue. Thus and except where it was made conditional in nature, (Re KemptviZZe district HospituZ C&pm)) arbitrators have, in the absence of such extenuating circumstances as those noted above, accepted a written resignation as reflecting the actual intention of the employee who prepared and signed it. Re Northern: Electric Co. Ltd. (19691 21 L.A.C. 53 (Hanmhml. Put somewhat differently, against the analysis . :’ - 17 - described above, we are of the view that arbitrators may and have properly regarded a written resignation as itself embracing the necessary subjective and objective elements of an intention to voluntarily sever one's employment. Thus, and as noted by one board of arbitration: . . ..the earlier decisions consistently hold that once an expressed intention to quit is given, a further objective act such as leaving work early; not reprting for work the following shift; or some other similar act is carried out consistent with the expressed intent. What the minimum requirement for such an objective act is we are not certain but one recent decision involving Re U.A.W., Local 1535, and Northern Electric Co. Ltd. (1969), 21 L.A.C. 53 (Hanrahanl, found that an expressed wish to quit followed four hours later by completing termination Papers in the personnel department was sufficient. This seems reasonable while anyone may utter a statement in an outburst, or due to the heat of the moment, he or she will invariably think twice before placing his or her signature to a document. See the Frigidaire Products case referred to above. Re Precision Valve (Canada) Ltd. (1970) 23 L.A.C. 131, 137 ,/Simmons). In short and whether one concludes, as with signed documents generally, that a written resignation accurately reflects the actual intention of the signatory, or whether one characterizes such a written and signed instrument as satisfying the arbitral search for some objective conduct which manifests a continuing subjective intention to quit, the conclusion follows that such written resignations must, in the absence of any of the factors noted above, be given effect to. Moreover, in the circumstances of this particular grievance, we are satisfied that the written resignation prepared by i’ - 18 - Miss Murraycan not be vitiated by any of the legal principles by which persons who sign such documents would be permitted to disavow them. Put at its simplest and against the grievor's particular allegations we do not believe that the written resignation she prepared and signed was the result of any subtle coercion, pressure, duress, or influence applied by Mr. Lambert. In more blunt terms we prefer, and for a variety of reasons, Mr. Lambert's description of his meeting with the grievor on December 15. In the first place and as the grievor herself would have to concede, had Mr. Lambert behaved on December 15 as she would now have us believe, it would have been totally out of character from his past experience with her. That is, in her evidence Miss Murray testified that she went to seek his advice on that day precisely because from her previous meetings and experience with him she had learned to trust him and had come to regard him as a friend. Moreover, there is nothing in her evidence which would indicate that on those two previous~occasions she was misguided, mistaken or misled by so regarding him. Accordingly and to now suggest that Mr. Lambert, for no explained reason, sought to subtly induce her to resign from her employment is not only completely at odds with her previous experience with him but is devoid of any rational, logical or factual explanation. Moreover such a description of Mr. Lambert's actions is completely at odds with his own testimony as to what transpired at that meeting: - 19 - In addition to being completely inconsistent with her Previous experience with him, and without logical or factual foundation, the grievor's evidence that her resignation was not a voluntary act must be rejected, in the face of Mr. Lambert's conflicting testimony, and for several additional reasons. In the first place, the grievor's evidence as to what transpired at that meeting was incomplete and faulty in several respects. For example, until confronted with it in cross-examination the grievor could not even recall having signed the application for the return of her contributions to the superannuation plan. Moreover, we would note that the evidence before us strongly suggests that the usual assumption that a person can be expected to think much more carefully before signing a document than before uttering some expression is in fact applicable to this grievor. Thus, for example, when Mr. Guiffre placed before her the letter of reprimand following their verbal altercation on the elevator and asked her to sign to acknowledge receipt of that document she refused to do so. That fact, which was not controverted by her, strongly suggests that had she not intended or desired to do so, Miss Murray was fully capable of withholding her signature and refusing to prepare, let alone. sign any resignation that was thrust at her. In addition, we prefer Mr. Lambert's description as to what transpired at the meeting of December 15 and accept his assertion that her resignation was a voluntary and intentional act on her part because, in sharp contrast with Miss Murray's, it has a - 20 - sound and rational basls in both logic and fact: Thus we would note on Mr. Lambert's and indeed on her own evidence that the grievor had,since the date of her transfer to Mr. Bonthron's unit,experienced a dissatisfaction with her working environment and had sought, on at least two previous occasions, a transfer out of that section. Such conduct, alluded to by other boards of arbitration (e.g. Re Outboard Marine carp. of Canada Ltd. (1970) 21 L.A.C. 270 M.imel) is not only consistent with the attitude of a person who, denied such an opportunity to transfer and given such a negative experience, might determine to sever her employment, but as well is consistent with Mr. Lambert's assertion that the option of resignation was discussed on December 15 only after he had again advised her that it was not possible for him to arrange a lateral transfer out of the unit and after she had confirmed she would not return to her position. Moreover, the explanation that the grievor's decision to resign was prompted, as her own evidence confirms, after she had exhausted all other possible alternatives, is also corroborated by the letter she received from the Deputy Minister in which he advises that it is because he is unable to find a suitable position, and not because he has rejected her claim that she was pressured into resigning, that he has decided to accept her decision to resign. In short from Mr. Lambert's evidence, from her previous attempts to transfer out of the section and from the Deputy Minister's letter we are satisfied that it was because there were simply no other available means to resolve - 21 - her dissatisfaction and difficulties with her supervisors and . not because of any pressure or coercion, that Miss Murray submitted her written resignation. Finally we believe that the grievor's own conduct immediately following her submission of her written resignation confirms that that document accurately reflects the grievor's true intention. Put somewhat differently, we believe that the griever's own conduct immediately following the meeting with Mr; Lambert itself provides corroborating evidence of a continuing subjective intention to resign from her employment. In the first place, if as she claimed, Mr. Lambert had pressured her into resigning and if the document she submitted was not a voluntary expression of intention on her part, it is difficult to understand why, when she returned home and realized within half an hour that she wanted to return to work, she didn't immediately do so. Her explanation that she interpreted Mr. Lambert's statement "not to change your mind" to mean that she "couldn't" change her mind is one which simply doesn't follow from any rational or reasonable construction of those words, even assuming they were spoken, and strains our credulity. Moreover and if as she testified she realized she wanted to return to work and that she had been frightened, pressured and coerced into resigning, it is incredible that prior to bringing these allegations to the Deputy Minister, she would spend the next morning at a practice of her choir. Simply put, such conduct hardly reflects the actions of a person who feels aggrieved at having been coerced and pressured into resigning her employment. In addition - 22 - her assertion as to the involuntary nature of her resignation simply does not coincide with her admission, in cross-examination, that even when she'met with the Deputy Minister she never suggested she would return to her former position with Mr. Sloane. In short and against that admission and together with her conduct early that day, we think it,clear that even on December 16 the grievor was manifesting, by her behaviour, a continuing intention to resign her position while simultaneously exploring the possibilities of securing alternate employment. In the result, we are satisfied that her preparing and signing a written resignation and her applying for her superannuation benefits was a voluntary and deliberate act on her part which did reflect a true intention to resign from her employment. Put differently we accept Mr. Lambert's assertions that at no time did he ever pressure, unduly influence, or coerce the grievor into resigning, advise her that~if she didn't she would be dismissed, or caution her that she must not ever change her mind. To the contrary and as we have indicated above, we believe the grievor's decision to resign her employment was a deliberate and voluntary one which was the logical culmination of several months of dissatisfaction with her employment situation and with her inability to secure a transfer from it. In short and having accepted the evidence of Mr. Lambert as reflecting an accurate portrayal of their meeting on December 15, there is nothing, in our view, which would vitiate our conclusion that the written - 23 - resignation.prepared by the grievor was a volunfary and consensual act on her part. In that regard we would note that it was Mr. Lambert's evidence that while the grievor appeared to be in an emotional and upset state when she initially arrived at his office,at the time she actually prepared and completed her resignation she appeared calm and relieved in her decision. So characterized we must conclude that the grievor did in fact resign from the Public Service within the meaning of s.19 of the Public Service Act. Having rejected her assertion that her resignation was coerced or extracted from her under pressure and there being no allegation that she attempted to revoke that decision pursuant to the procedure set out in s.19 of the Act or that the Deputy Minister improperly refused to accept a withdrawal of her decision, we must, for the reasons given, dismiss this grievance. Dated at Toronto this 21st day of Februarv 1977. dJ r/l MB- I - eatty Chaihan I C*nC”I M G‘bb Memblr See Addendcn 3 R Member Hennesy ADDENDWl - S. R. HENPIESSY, FEBRUARY 21ST, 1977 In light of the circumstances in this case I have, most reluctantly, joined in the decision of this panel of the Board. Fly reluctance does not relate to the cataloguing or application of the criteria used by arbitrators in this difficult and sometimes frustrating area of arbitral decision making. My concern relates directly to the manner in which the grievor's cessation of employment was brought I about. This panel has summed the problem up very succinctly when it referred to the contradictory evidence given by the grievor and the staffing officer concerning the meeting on December 15th. This panel concluded that, for various reasons, "the written resignation prepared and signed was hot7 the result of any subtle coercion, pressure, duress or influence applied by Mr. Lambert". I, personally, have great difficulty with this conclusion given the circumstances of that meeting. I must however, agree with this panel's final disposition of this case when one views the grievor's somewhat peculiar conduct in the days following the December 15th meeting. It is in light of the circumstances surrounding this meeting, that I would like to raise a responsibility which I feel has been overlooked. My corrunents should not be taken as specific criticism but as illustrative of a type of conduct which is, in my opinion, completely at odds with the obligations implied in a fair and equitable employer/employee relationship. An employee, as in the circumstances of the December 15th meeting, has great potential for abuse. Whether it is done knowingly or not the employer holds and may'exercise a great deal of influence in this type of situation. The employee in many cases is, at this time, making one of the most important decisions of his or her working life. It is a decision which calls for rational and calm reflection, if that is indeed possible. At the very least, it calls for a thorough and impartialreview of the circumstances which neither of.the parties directly involved, for usually conflicting reasons, are in a position to do. Certainly in most of the cases the employee is either reacting to external stimuli or is emotionally upset. This sort of situation, I believe, calls for a cooling-off period in which the employee should be allowed an opportunity to or be instructed that he/she should seek outside counsel, either from the bargaining agent, if any, or a friend, colleague or spouse. Such a restrained and understanding approach to the quit or resignation case would resolve most, if not all of these sort of problems. It would, at the very least, reduce the upsetting consequences which flow from the abuse of a relationship which should provide one of the most satisfying aspects. of an individual's life.