HomeMy WebLinkAbout1980-0069.Spence.80-06-20IELEPHONE: 416/598-068*
File No. 69/80
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
BEFORE THE GRIEVANCE SETTLEMENT BOARD
IN THE LMATTER OF AN ARBITRqTION
BETWEEN : Ms. JULIETTE SPENCE
Grievor
AND THE CROWN IN RIGHT OF ONTARIO
(MINISTRY OF T:XQ?SPORTAT'ION AND
COMMUNICATIONS) Emp layer
BEFORE: R. L. KZNNEDY - Vice-Chairman
E. R. O'KELLY - Member
W, Walsh~ - Kember
For the Grievor: Richard Nabi, Grievance Officer Ontar
Public Service Employees Union
‘LO
For the Emplover: N. H. Pettifor, Staff Relations Supervisor
Personnel Branch, Ministry of Transportation
and Communications
Heard at Toronto June 3rd, 1980.
DECISION
The grievance in this matter dated January 23rd, 1980, claims
that the grievor was unjustly dismisse d from her position of Clerk
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3.General and requests reinstatement to. the ,position.with full
compensation and no loss of pay or credits. It is the position of
the employer that the grievor resigned from her employment.and is
not entitled to be reinstated thereto.
The grievor commenced employment with another Minist-y in the
year 1977, at which time she was a Clerk 3 General. On September
lOth, 1979, she commenced work with the ttinistry of Transportation i
and Communications as a Payroll. Clerk pursuant to a job posting to
which she had responded., The position. which she took witi the
Mistry of Transportation and Comnnxnications was an equivalent job
to the one that she had held wikh <ne Ministry of Xousing.. It was
common ground between the parties that at all,times material to this
grievance she held the status of a probationary emPloyee with the
i%iistrl of Transportation and Communications.
On behalf of the employer, the Supervisor of the Payroll Section
testified as to the' grievor's employment history. in accordance with
Departmentai practice a performance review was held with 'he grievor
December 3rd, 1979, with respect to her first three months of employ-
ment. Also present at that review was the grievor's immediate super-
visor. It is clear on all the evidence that in the course of that re-
view the grievor's work performance was quite satisfactory, but &%at
management expressed concerns as to her attendance and >*mctuaii?f
record. It was indicated to her at that imeeti7.g by Me Supervisor of
the Payroll Section that if t.he attendance did not *rove :5e would -
be unable to recommend her appointment to permanent staff. in tihe
course of cross-examination full particillars of the actual numbers
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and duration of absences were provided, but we do not consider it
appropriate to review those in detail in view.of the position taken
by the employer that at no time was any disciplinary action taken and
none of the meetings with the grievor were considered to be discip-
linary in nature.~ The Supervisor of the Payroll Section expressed
his suspicion as to 'the legitimacy of some of the absences, but there
was no evidence to support that suspicion upon which it would be
proper for this Poard to rely. The' griever's evidence ia this
reqard will be referred to later on, but it is sufficient at this
point to state that while the evidence does indicate a high frequency
of absence, we would have to conclude that it was as the result of
legitinate illness and that the employe r at no tirre purported to take
any action of a disciplinary nature with respect to it.
On December ZOth, 1979, a letter was handed to the grievor in
the following language:
CONFIDENTIAL
Downsview, Ontario
Oecember,20, 1979.
~Hrs. J. Spence, 42 Chipwood Crest., Willowdala, Ontario, X2J 3X7.
Dear ~Xrs. Spence:
You attended a meeting in my office on 79-12-03. The Purpose
of the meting was to discuss the Employee Perfocmnce Report *which
was completed following 3 months employment with the LXinistry. I explained the rsason for t:he report and discussed its contents with
you and your qxoup leader. You were advised that your punctuality
and attendance were unsatisfactory.
,$;’ 2.
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It would appear that my comments were not taken too seriously.
You are therefore advised that effective immediately, you will submit a doctor's certificate for each absence due to illness;
Further, a record of your punctuality will be maintained wi';h the result of a possible~ reduction of vacation credits.
It is my hope that this letter will impress upon you the impor-
tance of the matter.
Yours truly,
A. J. Chateauvert,
Financial Branch, Pay Office, Supervisor. A.TC/dfp.
It was agaii stated by representatives of the employe: in tes-
timony that the letter was not considered to be disciplinary in
nature. Another representative of management described the meeting
at which the grievor was given that letter as being informal and cor-
dial. She indicated, that it was understood after the December 20th
aeetinq that the qrievor would try to attend more regularly.
The qrievor was scheduled to be absent from work from December
24th, returning Janus,y lth, to t&e prearranged vacation. She did
not return to work on either January 7th or 8th and on the morning of
January 9th when she did return to wor.k she-apparently delivered t.o
the Supervisor of the, Payroll Sedion a typed letter stating sis~ply
as follows:
"I herby my resiqnation as payroll clerk with The Ministry Of
Transport and Communication effective January 11, 1980."
That letter was dated Janua,ry 7th, 1980, and wars apparently Selivered
at a little before 9:00 a.m. on January 9th. Subsequently, the qrievor
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was apparently requested to indicate on the letter the reason for
her'decision in order that the Unemployment Insurance Commiss,ion
forms could be correctly completed, and she then added to the letter
in her own handwriting the following:
"The reason for this decisionis I have had quite .a lot of time off due to illness and foresee more time off in the future. I do not think this is fair to you or the girls doing my share of the work."
The Supervisor of the Payroll Section indicated that because of the
continuing work flow within his Department it was necessary to arrange
immediately for a replacement and he contacted Personnel to see if it
would be possible to appoint one of the other applicants who had
originally applied for, the job which the grievor received, rather tban
to go throuqh the posting process all over again. 3e stated that such
a process had been followed to his knowledge on at Least two earlier
occasions and that on one of those occasions he had been advised that
the Union had specifically agreed to such a procedure. In any event,
he was apparently instructed by Personnel to qo ahead and on the after-
noon of January 9th he told one Xohamed Jan Yohamed that effective the
following Xonday he would assume the duties of the grievor. Xohamed
had been an unsuccessful applicant for the job to which the qrievor
was assiqned in September and the job constituted a promotion for him
requiring his reclassification. mohamed did commence doing the duties
on the following Nonday and he was given notice by the e.mployer of the
aearinq of this grievance. Nocha.med did attend the 'tSearT>q and was
given opportunity to participate and to examine ;iitnesses.
At aroEi5d 4:00 P.m. on January lOth, 19S0, the qrievor delivered
a, handwritten letter in the following 'ierms:
I
"I would like to revoke my resignation date Jan. 11, 1980, in accordance with The Public Service Act, Section 14. MY decision to revoke the resignation was made as a result of careful thought around the circumstances leading to the January llth, 1980, resignation.
After my meeting with W. Chateauvert regarding my attendance, I feel I had no choice, because he told me if my attendance
did not improve he would not recommend me to regular staff.
All the time off I have had off was legitinate and I feel
after the 2 weeks in the hospital I will inprove my attendance. Mr. Chateauvert had no complaints about my work, in fact he even said it was good. The circumstances being as they are I am very sorry for the inconvenience and I look forward to being reinstated."
The Supervisor of the Payroll Section actually received the fore-
going letter on the following mormng and since, in accordance ;Jith
Departmental procedures, he did not have authority to accept the revo-
cation, he reviewed'tbe matter with his superior. He thereafter wrote
the following letter to the grievor which was signed on behalf of the
employer by tix Director and Financial Comptroller:
"I acknowledge receipt of your letter date 80-01-10, in which
you request that your letter of resignation dated 80-01-07 submitted to your supemisor 80-01-09 be revoked.
I regret to advise you that a comi'ment xas made to &r.Xohmed Jan Moharned on 80-01-09 to assume the responsibilities of the position effective ao-01-14.
Under the circumstances I am unable to accept your request."
ije were not provided with any evidence as to how that letter was for-
warded to the grievor, but it was her evidence that she did not receive
it until somctwo weeks later in the mail.
The grievor testii-- "ind that she first anccuntered 'health pr,oblems
in about June of 1979 and that they relatad to a tonsilitis probiem.
The effect of this,was that she encountered severe sore throats and
high tmperatures with some frequency and it was her evidencs, cwhich
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in the circumstances we accept, that her absences in the Pall and
Winter of 1979 were legitimate and related to that problem. She tes-
tified that the problem became particularly severe in the course of
the vacation trip which she had arranged for the Christmas period and
that upon her return she contacted her doctor and was advised that as
soon as a bed was available in the Kospital an operation would be per-.
formed. She was absent from work January 7th and 8th by reason of the
tonsil condition and on her return to work she presented a medical cer-
tificate explaining the'absence at the same time as she h&ded in the
letter of resignation. It was confirmed to her on the morning of
Janus-q 9th by her doctor that she would be entering the Hospital on
the following Aonday and that she would be off fdr a period of appoxi-
mately two weeks. She stated that she did not get along particularly
wellwith the Supervisor of the Payroll Section and, in view of his
prior warnings, she, was concerned that if she asked for further time
off she would be tsrminated. In those circumstances she felt it would
be better if she resigned and she sta ted that when she gave the Letter
.to the Supervisor she advised him'of the problem with tonsils 'and of
the fact that she would be going into the Hospital~for an operation on
the following Nonday. She fxrther stated that she had advised him of
the tonsil problem on prior occasions. She stated that t!!e Supervisor
merely thanked her for her letter and she returned to her duties. 'Nith
respect to tbe comment which she subsequently wrote on the resignation
letter, she was asked to include it so that a reason could be given on
the Unemployment Insurance form and that the actual wording was wor!<ed
out with a co-worlcer to whom she was explaining the situation. She
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stated that she was not at that time aware of the sickness provisions
from which she could benefit because she did not think she had com-
pleted twenty continuous days of work, but that in reviewing the
situation with fellow employees they advised her as to what options
were open to her in the c&rcumstarices, and she began to reconsider what
she had done. On the following day she contacted a Union representative
and on his advice, prepared and delivered tI%e letter dated January 10th.
She subsequently went into the. Hospital and had the operation and she
testified that this had been successful. and she did not anticipate any
further attendance problems.
The position of the employer is, in substance, that an unconditional
resignation was submitted by the grievor because the griavor felt she
could not meet 'de job requirements and that it iJa.s unfair to her asso-
ciates to continue. The employer must take the resignation at its face
value and,, since thePayroll Section is a continuous one, an i-mediate
replacement must be found. The dec izion as to a replacement was made on
January 9th and the new employee was so advised. We were referred to
Section 19 of The Public Service Act, R.S.C.1970, C.386, which reads
as follows:
"A person may resign from the pblic service by giving his Deputy Ltinister two (2) weeks notice in writing qf his in- tention to resign, but he may, by an appropriate notice in writing and with the approval of ,his i7eputy Minister, xith-
draw the notice at any time before its effective date if no person has been appointed or selected for appointment to - 1 the position that would become vacant by reason or nis resignation."
It was the position of the, ~pioyer that within the language of Section
19 a person had been selected for appointment to tie position and that,
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therefore, by reason of the Statute the revocation came too late.
We are unable to accept the proposition that Section 19
constitutes an answer to the grievor's claim in this matter.
Firstly, as will be discussed in more detail later on, this
argument is premised upon the receipt by the employer of an
unqualified resignation. In all of the circumstances, and
considering the arbitral authorities, we are not satisfied
that the grievor had, in fact, submitted an effective resigna-
tion. Secondly, Article 4 of the Collective Agreement between
the parties provides for the posting of vacancies where same
occur and that procedure clearly was not followed prior to
the selection of Mohamed to assume the grievor's responsi-
bilities.. It may well be that there is some practice or
arrangement between the parties dealing with circumstances of
this nature and it would further appear that, in point of fact,
no grievance followed the appointment of Mohamed. While we wish
to make it very clear that we are in no way commenting upon the
appropriateness or correctness within the Collective Agreement
of the appointment of Mohamed it is our view that if the employer
wishes to rely on Section.19 there is a strong onus on the employer
to lead evidence and establish that the employer has come within
all requirements of Section 19. It may well be that if there is,
in fact, a conflict between the Collective Agreement and a
Statute, then a Board of Arbitration acting under the Collective
Agreement cannot go contrary to the Statutory provisions, but
where there is no such conflict, and the Statute requires the
selection of an employee by the employer we think it is~ :: 7
f '. implicit within-the Statute that the selection must be done
. . i I ii.
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properly and lawfully within the provisions,of the Collective
Agreement. The only material in that regard which is before us
consists of the specific language of the Collective Agreement in
Article 4 and the evidence that the Personnel Department apparent,ly
authorized the appointment of Mohamed and that similar situations
may have happened in unspecified circumstances in the past. In
our view the evidence which has been given to us falls far short
of establishing that within the language of Section 19 a replace-
ment had at the material time been selected. We would note for
the record that the Union further. argued that the selection would
not be effective until the person selected actually assumed the
duties and, further, that the provisions of Section 19 were
merely directory and not mandatory. The Union further argued
that the Section could not apply since the grievor's purported
resignation itself did not meet the requirements of the Section.
In view of the position that we have taken with respect to Section
19 we need not comment on those additional arguments advanced by
the Union.
Clearly, an employee has the right to resign or quit his employ-
ment. However, that right must be exercised voluntarily and the
determining factor in answering the question of whether or not the
employee has, in fact, quit requires a Board of Arbitration to
determine the true intention of the employee. The arbitral
authorities in this area commence with re Anchor Cap and Closure
Corp. of Canada Limited (1949) 1 L.A.C. 222 (Finkelman) wherein
the following statement was made at page 223:
"The act of quitting a job has in it a subjective as well as an objective element. An employee who wishes to leave the
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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 pro- vided 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."
That principle was further developed in re SCN (Canada) Limited (1964)
L5 L.A.C. 332 (Seville) wherein the arbitrator divided the cases
dealing with situation where an employee was alleged to have
quit his employment into two,categories. At page.337 the Award
states :
"The first category comprises cases where the grievor has
never:.expressed an intention ta'quit his employment and the company has deemed him to have quit his employment because of his absence from work for extended ,oeriods of time through circumstances iJhich the company claims were. not justifiable....
The second category comprises cases where~ the grievor in' question has exJressed an, intention to quit, or has used words
from which an intention to quit may be ilferred, but the question then arises whether the subsequent conduct of the
grievor meets the objective tests referred to by Jrofessor Finkelman iri tSe Anchor Cap case quoted above."
It is, therefore, our view that in evaluating a resignation Lie Soard
must be satisfied that there is a continuing subjective intention of
quitting on the part of the employee, and if there is subsequent con-
duct on the part of the employee which is inconsistent with the ex-
pressed intent, then it may be that there has. not been an effective
resignation. In making that evaluation it is our view that the 3oard
must consider the. circumstances as <ney existed at the tise of the pur-
ported resignation, and in particular, the information and beliefs ,I
the mind of the griever at the material tise. In re Universitv of
Guelph (1973) 2 L.A.C. (2d) 351 (Shine) at ;lage 359 the foiiowing
summary of the arbitral authorities is. set out:
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"The net result of the cases clearly establishes that absent any other conduct the expression or uttering of words to t,he effect that an employee is quitting are not sufficient to re-
sult in a severance of employment. Boards of .Arbitration in that category of cases have conducted-a search to ascertain
what has been characterized as a true intent or a continuing intent. In this they have looked at other conduct in order that a more objective appraisal may be made. The search for a true intent or a continuing intent also eqlains why some Boards have reinstated the grievor even after he changed his mind. Implicit in these cases is the understanding and recog- nition by arbitrators that the uttering of the words "I quit"
may be part of an emotional outburst, something stated in anger, because of job frustration or other reasons, and as such it is not to be taken as really manifesting an intent by the employee to sever his employment relationship. Soards of Arbitration have t!!en looked to other conduct and the course of events in order to establish a more objective basis upon which.to find that the grievor did i?te.nd to sever the relationship.
The very obvious difficulty in arriving at a determination in this type of. ca'se is in --he very nature of the search to discover th.e
employee's actual intent. Since intent is basically a subjective concept, a Board of. Arbitration will be hard pit in those cases where an employee states that he reacted in anger or that he had an emotional outburst, but that he did not really Intend to quit his job. In many situations one must recognize that anger and
emotion may be more than a flash situation and an employee may have an outburst at the point, stock out and then overnight, or after some reasonable period, when the emotion has subsided or abated and there has been an opportunity for sensible reflection realize that the statement was made in a burst of anger and that
he did not really intend to quit. Faced with that ty",e of situ-
ation it is very difficult to say that an employee intended to sever the employment relationship, and accordingly, Boards of
Arbitration must of necessity look at other facts in order to
find on a more objective basis that the employee had, in fact, quit."
in applying the foregoing princip,les to the fact situation which
is before us we do not consider that the grievor's pueorted written
resignation is significantly different from the oral statements of
resignation or quitting referred to in the various ar5itral authorities.
It was, indeed, a short letter prepared for her by another a.mployee
and, notwithstanding its date, it ,is clear on +Ae evidence i?at it
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was prepared subsequent to the commencement of work on January
9th at 8:OO a.m. and it was delivered prior to 9:O.O a.m. At the
time it was given the grievor indicated that she was afraid of her
Supervisor and, whether or not that attitude was justified on her
pat, it represents part of the subjective background against which
her actions must de evaluated. She was aware of ber status as. a
probationary eqloyee and of the fact that she had received prior
warnings with respect to her absences. On the evidence as.it was
presented to us it would appear that, in point of fact, those
warnings were unjustified in view of the fact that they related i?
part, at ,least, to situations of legitimate illness, but they again
form a part of tbe background agains t which the grievor was acting.
She further indicated ';hat because she did not think she had com-
pleted twenty days of' continuous work she would not be eligible for
any sickness benefits available to employees and, i,? all of these
circumstances, t4e most reasonable course of action to her was to
resign rather than to be'te--nated. On the evidence we would con-
clude that her purported resignation, rather than reflecting a tr2e
intent to sever then qployment relationshi?, reflected what she con-
sidered to be a necessary expediency to avoid what she considered
would be certain termination of emI,loyment. In the circumstances,
we conclude that she did not have an intention to resign at the
time of delivering the Letter and that she has, 7withia a reasonable
the, communicated that fact to her employer.
It was argued by the~iinion that in accordance with the law of
I’ (. .i
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contract the grievor's resignation could not be effective until it
was formally accepted'by the employer. On the evidence the Super-
visor of the Payroll Department did not at the time of receipt of
the resignation make any positive statements of acceptance, but
merely thanked the grievor for the 'letter and subsequently requested
that the reason be added to it. There was no other formal act of
acceptance on the part,of the employer prior to the receipt of the
revocation and, thereafter, the only formal act was the subsequent
letter which was apparently not received by the grievor for some
period of two weeks. The Union relied on the case of Lafleur and
Treasury Board (unreported, Public Service Staff P.elations 3oard,
Simmons, July 16th, 19761, but ins our view that argument incorrectly
applies the common law contractual standards required to create a
contract, namely, offer and communicated acceptance, to a situation
of what is essentially a breach of contract. We prefer to dispose
of the matter on the basis of the traditional arbitral standards of
whether or not the grievor has exhibited the necessa,v and con-
tinuing intent to terminate employment.
In reaching the foregotig conclusion we are conscious of the
earlier decision of this 3oard w ith'resrect to.Agnes Boyce and The
,Xinist.rry of the Attorney General written by the t??en Chairman, D. N.
Beatty and &ted August 13th, 1976, cautioning us that with respect
to probationary employees we do not exercise the full appellate re-
view that would ordinarily be exercised in tie case of an employee
who has completed the probationary period. In our view, however, it
is not saterial to a determination of whether or not t:here existed
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in the employee a true intention to terminate employment whether
the employee is probationary or is on permanent staff. We are not
exercising a review function of a management decision, but rather
are determining a state of facts at a particular point in time.
In the result the grievance must be allowed and the grievor
reinstated with the same status as at the time the matter arose
with full compensation for wages and benefits lost. We will remain
seized to determine the issue of compensation should the parties
not be able to agree upon same.
DATED at Toronto this 20th day of June, 1980.
."R. L. Kennedy."
Ross L. Kennedy - Vice-Chairman
I dissent
I concur
'"E'. R. 0"Kelly"
E. R. O'Kelly
'W.~ Walsh" ,.
W. Walsh
June 12. 1980
Mr. Ross Kennedy
3arrister L Scilc~‘or
P. 0. 30x 2c
Suite $CC
Ropei Sank ?hz?
TOROHTO, Ontario zlr5J 2Kl
Si73JZCT : KS Julietse S;encei’CntarLo .Yinlstry or’ Trans;ortaticn
and CommunlcatLon3 Arbitration.
1 am unable to agree’with the award of the mjority
In th13 case.
Ms. Spence effectively resigned ‘by her Letter dated
JanuaFJ 7, 1980 which she delivered Ln person to Vr. ;t. J.
Chateauvert on January 9th. iater that day,’ her resLgnation
wa s returned to ‘her with a request th.at she add the reasons
for her raslgnatlon. This she did. by adding a handwritten
I’ P . s * ” to the document. Thi3 act ion further con?irmed her
continuiiig intention to resign and in m-y view- at this oolnt
the resignation was effective and clearly beyond recall.
SometLne on January 10th after a di3cus3ion wit.‘: the
iJnion Steward, Ys. Spence decided to attempt to revoke :?er
resignation and prepared a letter to this effect. it was
delivered to Nr. A.J. Chateauvart’s office !ate In tile day
after ‘he had left. It was delivered to hLm the next day,
Friday, January the 5th. .Ar: t;his thie, ;<s. j:er,ce could only
. . . . . . . . . . . c
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revoke her resi&nation with the approval oi’ the Ceputy
Minister as provided for in sect. 19 of the Fubllc Service
Act R.S.0,. 1970 C.386.
On this same date (January 11th)
the Deputy Minister’s delegate, Mr. FX. Wood wrote to
Ms. Spence re.CusLng approval and further pointed out that
a commitment was made to another employee, Mr. Jan Mohamed
on January 9th to iill the position,
I oelieve it is quite clear t;?ac, Vs. Spence resigned
on January gth, effective January Uth and that iMr. Xood
acted. correctly and within his authority when he advised
Ms. Spence on January .llth that he could not accept tier
request to revoke :her resignation.
.I would have dismissed the grievance.
E. R. O'Kelly
,Member