COURT FILE NO.: 80/2002

DATE: 20021119

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

mcneely, J. deP. wright, howden jj.

B E T W E E N:

GWEN STAUB, EMPLOYMENT STANDARDS OFFICER

Applicant

• and -

TENNECO CANADA INC., JERRY F. SCHWARTZ and ONTARIO LABOUR RELATIONS BOARD

Respondents

Murray Klein, for the Applicant

Adrian Miedema, for the Respondent, Tenneco Canada Inc.

Leonard Marvy, for the Respondent, Ontario Labour Relations Board

HEARD: November 19, 2002

MCNEELY J.: (Orally)

1This is an application by Gwen Staub, an Employment Standards Officer, for judicial review of a decision of the Ontario Labour Relations Board which set aside the applicant's order that Tenneco Canada Inc. pay to its employee Mr. Jerry Schwartz, an amount under the Employment Standards Act by reason of constructive dismissal from employment.

2Mr. Schwartz had been an employee for some sixteen years, during the last fourteen of which he held the position of Chemical Lab Technician, the second highest graded non-managerial level position in the company. In this position he earned $20.00 per hour for work which was 25 percent technical, 50 percent mechanical and 25 percent labour. As a result of a downsizing at the company, Mr. Schwartz, pursuant to a company policy had the opportunity of working at a production job which paid $14.00 per hour and involved far more lifting, bending, and heavier labour than his former position. In this new job he would lose $6.00 an hour in addition to the loss of other benefits that he had in his original position. He also lost in addition to his regular pay an additional $310.00 every third week for being on call.

3The policy of the company that I referred to also had a provision whereby during a period of five months the company would pay the employee his original salary in the lower position and while so employed in that lower position he could also apply for various jobs that might be posted if vacancies occurred for which he felt qualified.

4Mr. Schwartz who was married with three dependants apparently did move to the lower position. Within a very few days of that he found that the work was heavier and that it bothered his back which had previously been injured. During the six days he worked in the new position he had to go to a chiropractor on two occasions because the new work was causing back problems. He complained about the work to his supervisor and the supervisor said, "You'll get used to it".

5Within 12 days from the time that he was terminated in his original position and six days after he started in the new position, Mr. Schwartz went to the company and said that he was no longer interested in working in the lower level position, that he had an opportunity to take a position outside the company and that therefore he was quitting. Apparently the company official with whom he was dealing said, "Well, in that case, I can draw up the notice for you" and he drew up a notice saying, "I resign, effective in two weeks" and had Mr. Schwartz sign it.

6The Employment Standards Officer who conducted the investigation under the Employment Standards Act found that Mr. Schwartz had been constructively dismissed and was entitled to benefits under that Act. Counsel in this case have before us agreed that if he was so entitled to benefits, those benefits would be in the amount of $10,000.

7The company appealed that decision and the appeal was heard by the Ontario Labour Relations Board in the person of Mr. Sargeant, the Vice-Chair. Mr. Sargeant, having reviewed some of the facts, set aside the decision of the Employment Standards Officer and found that Mr. Schwartz having quit his new position was not constructively dismissed and was therefore disentitled to any benefit under the Employment Standards Act.

8In approaching the judicial review of that decision we accept the submission of counsel for the Ontario Labour Relations Board that the standard of review is reasonableness and that unless we are able to find that the decision reviewed is unreasonable, it should not be interfered with.

9In this particular case we find at paragraph 25 of the Reasons for Decision of the Tribunal that Mr. Sargeant states: "the difficulty arises as to whether or not on the facts Mr. Schwartz quit or was constructively dismissed". The reasons then go on to consider what constitutes quitting and having looked at some of the cases dealing with quitting, Mr. Sargeant concludes in paragraph 29, "Having found that Mr. Schwartz quit his employment there is no need to consider the other arguments in this matter".

10It is clear to us, looking at the reasons for judgment as a whole, that the decision now under review treated constructive dismissal of an employee and quitting of employment by that employee as mutually exclusive alternatives. In effect the tribunal decided that if an employee quit that employee could not be found to be constructively dismissed. I think that is clear from the reasons particularly since following paragraph 25, the whole of the discussion in the reasons revolves around whether the employee quit and the conclusion reached in paragraph 29, is that having found that Mr. Schwartz quit, there was no need to consider other arguments.

11First of all, the initial issue in this case was whether there was constructive dismissal. It is perfectly clear, given the disparity in the work involved, given the disparity in the pay involved, given the other aspects of the two positions - the former position and the position he was moved to-that Mr. Schwartz was constructively dismissed. Having been constructively dismissed, Mr. Schwartz nevertheless attempted for a period of six days to carry on in the lower rated job although it was more physically demanding and caused him back problems for which he required medical attention. He then decided that he could not carry on and did not wish to carry on in that job and he quit. He signed a resignation prepared by the superior in the company to whom he spoke.

12Instead of directing his mind to the real issue as to whether Mr. Schwartz had been constructively dismissed or had not been constructively dismissed, the adjudicator Mr. Sargeant directed his mind to the issue of whether he had quit or was constructively dismissed as though quitting the job to which he was transferred meant that he could not be constructively dismissed from his original job. We have already indicated that in our view it is clear that the evidence in this case could lead only to one reasonable conclusion, namely, that he was constructively dismissed.

13The only question then arising as to whether Mr. Schwartz, having been constructively dismissed can be said to have accepted that dismissal by reason of the fact for a period of six days he tried a more physically demanding and lower paying job before giving in his resignation in the circumstances I have mentioned.

14We are satisfied that in attempting to carry on in the new position for six days in the circumstances mentioned, Mr. Schwartz was not accepting the change in his original employment or waiving in any way his rights arising from his constructive dismissal from his original position. We think that the decision under appeal clearly misconstrued the issue before the tribunal and that the conclusion was an unreasonable one.

15Accordingly, the decision below is set aside and in its place there will be an order in terms of paragraph 29 of the applicant's factum, except that no costs are requested or awarded.

MCNEELY J.

J. deP. wright J.

HOWDEN J.

Date of Oral Reasons for Judgment: November 19, 2002

Date of Release: November 25, 2002

COURT FILE NO.: 80/2002

DATE: 20021119

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

mcneely, J. deP. wright, howden jj.