GSB# 2024-02707

Union# G-113-24-BOW

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union - Local 1587 (Hardman)

Union

• and -

The Crown in Right of Ontario (Metrolinx)

Employer

BEFORE

Adam Beatty

Arbitrator

FOR THE UNION

Gary Hopkinson Ursel Phillips Fellows Hopkinson LLP Counsel

FOR THE EMPLOYER

Rebecca Liu Hicks Morley Hamilton Stewart Storie LLP Counsel

HEARING

August 1, 2025

Decision

I. Introduction

1On November 20, 2024, the Grievor resigned from her employment with Metrolinx. On November 21, 2024, the Grievor sought to rescind her resignation. The Employer denied this request. The Grievor filed a grievance challenging the Employer’s denial.

2The issue in this grievance is whether the Grievor’s resignation constituted a valid resignation. The Employer submits that the resignation was valid and that the grievance should be dismissed. The Union submits that the resignation was not valid and that the grievance should be allowed.

3As will be described below, the parties largely agreed on the underlying facts and the applicable law. As is often the case, where they part company is the application of the facts to the law.

4The parties agreed to bifurcate on the issue of remedy. As such, the only issue before me is whether the resignation is valid.

II. Summary of Facts

5The parties filed a partial agreed statement of facts (“ASF”). The following summary is drawn from the ASF:

a. The Grievor was hired as a full-time Bus Driver on November 20, 2023.

b. In the normal course her probationary period would have ended on May 20, 2024.

c. Due to time missed from work stemming from an injury, the Grievor’s probationary period was extended to July 20, 2024. The Grievor and the Union were notified that her probationary period was being extended on April 23, 2024.

d. The Grievor started a sick leave on July 18, 2024. The next day, July 19, 2024, the Employer emailed the Grievor advising that her probationary period was going to be reviewed, with a new end date to be determined after the review. The Union was not included on this email.

e. The Grievor returned to work in October 2024 on modified duties. The Grievor had resumed full driving duties by November 20, 2024.

f. Neither the Grievor, nor the Union, heard anything else about extending her probationary period until the events of November 20, 2024.

g. On November 20, 2024, the Assistant Manager, Driver Safety and Training, Mr. Rory Craddock told Ms. Nicole Trotter, a Board Member of the Union, that the Grievor’s probationary period would be extended until February 20, 2025.

h. Shortly thereafter, at approximately 10:30 a.m., Mr. Craddock spoke with the Grievor and told her that her probationary period would be extended until February 20, 2025. The extension of her probationary was confirmed in an email from Mr. Craddock sent the same day.

i. During their call, the Grievor indicated she thought her probationary period had already ended. Mr. Craddock stated that she should speak to the Union and that he would set up a meeting with her and the Union for the following week.

j. At 11:11 a.m., the Grievor emailed the Manager of Bus Operations – Hamilton/Niagara David Hewitt, the Vice-President of Bus Operations Mr. Paul Maglietta and the Chief Executive Officer (at the time) Mr. Phil Verster resigning from her employment. The Grievor’s email is reproduced in its entirety below:

Hi David,

I just received a very upsetting call from Rory Craddock in training. He informed me that my probation is being extended again because of time missed. The time I have had to take is because of injuring myself on the job. Rory wanted nothing to do with talking to me about the issue. I have bent over backwards trying to make this job work. It’s not working, my mental and physical well-being is not good. Please accept my resignation effective immediately. Nothing is ever good enough for this company and I am tired of being treated as such.

k. At 3:53 p.m. Mr. Hewitt responded to the Grievor’s email and accepted her resignation. Mr. Hewitt wrote:

Hi Nancy,

Thank you for your message. I’m truly sorry to hear about the decision you’ve made, but I understand and respect it. I accept your resignation, effective immediately, and I want to wish you all the best in your future endeavours. If there is anything I can do to assist with your transition, please don’t hesitate to reach out.

l. Shortly thereafter Mr. Hewitt notified several employees that the Grievor had resigned and initiated the off-boarding process.

m. On November 20, 2024, the Grievor was scheduled to work a split shift. The second half of her shift was scheduled from 14:01 to 17:53 p.m. The Grievor did not work this part of her shift. Nor did she notify anyone of her absence.

n. On November 21, 2024, at 3:36 p.m., the Grievor emailed Mr. Hewitt, Mr. Maglietta and Mr. Jeff Hudebine (Director, Bus Operations West) asking to rescind her resignation.

o. The Grievor was scheduled to work on November 21, 2024. She did not attend or notify anyone of her absence.

p. On November 22, 2024, Mr. Hewitt denied the Grievor’s request to rescind her resignation.

q. Metrolinx agrees that it had no legal authority to assert that the Grievor was still on probation as of November 20, 2024.

6In addition to the ASF, the Grievor testified. The salient portions of her evidence can be summarized as follows:

a. The 10:30 a.m. call with Mr. Craddock on November 20, 2024, lasted approximately five or six minutes. At the time of the call, the Grievor was sitting in her car in the Hamilton garage.

b. The Grievor described being caught off guard when she was told that she was still on probation. She testified that she was “very confused and in shock” and that she felt intimidated and unsure about what the next steps would be. She indicated that she felt scared and unsafe. The Grievor also indicated that she felt “vulnerable” and that she could feel her “emotional health spiralling out of control.” The Grievor stated that she was crying.

c. Shortly after that call, the Grievor called Mr. Craddock back with a few more questions. The Grievor described herself as feeling a little “foggy” during this conversation. She indicated that she felt she was reacting to what Mr. Craddock was telling her, that she remained confused about why she was being told she was still on probation, that she was very upset and emotional. The Grievor reiterated that she continued to feel intimidated and was caught off guard by what Mr. Craddock was telling her. She stated that she was “sobbing”, was “having a panic attack” and felt “very out of sorts and emotional.”

d. The Grievor testified that at the end of the second call with Mr. Craddock she felt herself spiralling out of control and that she needed to get as far away as possible. In that moment the Grievor decided that the only way to get away from the situation was to resign.

e. The Grievor acknowledged that Mr. Craddock wasn’t rude or aggressive during the call. He didn’t swear or yell or insult the Grievor. She also acknowledged that Mr. Craddock told her he would arrange a meeting with the Union for the following week.

f. The Grievor typed the resignation email on her phone while sitting in her car. The Grievor indicated that it took her quite a lot of time to write the email. She further indicated that she took approximately 15-20 minutes between the second call with Mr. Craddock and writing the email to try to calm down and weigh out the options available to her. However, the Grievor also stated that the whole period of time was very foggy.

g. The Grievor testified that when she got home she remained extremely distraught, upset and crying. She described feeling as if she had been “side-swiped by a Mack truck.” She indicated that her emotions were “raw and real”, and that she felt “emotionally and physically exhausted.”

h. After a quick bite to eat, the Grievor lay down and cried herself to sleep. She slept for approximately five or six hours. The Grievor acknowledged that she did not set an alarm to wake herself for the second part of her shift. She recognized that her failure to advise the Employer that she would not be coming in for the second part of her shift was a poor decision.

i. The Grievor recalled that during her first conversation with Mr. Craddock he told her to speak with her Union and that he would arrange a meeting. She indicated that looking back she should have followed his suggestion. However, according to the Grievor, she was not thinking rationally. To the contrary, her thoughts and emotions were in a “downward spiral.”

j. When the Grievor woke up, she spoke with her family and friends for approximately 2 hours (roughly from 6:00 – 8:00 p.m.). She indicated that her emotions were coming back in check. She realized the severity of what had happened and felt remorseful. She was embarrassed about how she had responded to being told her probation was being extended.

k. The Grievor reached out to the Union on the morning of November 21, 2024. Following several hours of back and forth with various members of the Union, the Grievor wrote the email asking to rescind her resignation. In that email she wrote:

Hello David,

I wanted to apologize for sending my resignation email yesterday. I would like to ask to rescind my resignation. After speaking to Rory I was very upset and affected by our conversation. I acted rashly, I was not thinking clearly when I sent you that resignation email.

l. The Grievor acknowledged that she did not reach out to the Union after she woke up on November 20, 2024 despite feeling remorse with respect to her decision to resign.

7Finally, Ms. Nicole Trotter also testified. Ms. Trotter has been employed as a Bus Driver with Metrolinx for 18 years. She has also been a member of the Union’s Board for Bus Operations East for the past five years. Her relevant evidence can be summarized as follows:

a. Prior to the incidents leading to this grievance, Ms. Trotter had never met the Grievor and did not know her.

b. Ms. Trotter first spoke with the Grievor on November 21, 2024 at approximately 12:15 p.m. According to Ms. Trotter, the Grievor was still emotional when they spoke, she regretted having resigned, and wanted to rescind it.

c. Following her call with the Grievor, Ms. Trotter made several inquiries with various individuals to get additional information. Later that afternoon, Ms. Trotter spoke with Ms. Cathy Borrens, the Union Vice-President, who told her to tell the Grievor to email the Employer requesting to rescind her resignation. Ms. Trotter was able to relay that message to the Grievor at approximately 3 or 3:15 p.m.

III Positions of the parties

A. Position of the Union

8The Union started its analysis by reviewing certain foundational principles. The Union noted that a valid resignation requires two distinct elements. First, there must be a subjective intention to quit. Second, the employee must demonstrate an objective, ongoing intent, beyond the uttering (or writing) of the statement, to end the employment relationship as evidenced through their conduct. Only when both elements are present will an arbitrator find a resignation to be effective.

9Second, the Union argued that conduct that occurs while an employee is still emotionally upset, or under emotional duress, may not be indicative of an ongoing desire to end the employment relationship. As such, according to the Union, any purportedly objective conduct that could suggest an ongoing desire to resign must be reviewed to assess whether, and to what degree, that conduct is impacted by, or the result of, ongoing emotional upset.

10Third and finally, the Union argued that arbitrators must determine whether a resignation has been impacted by an employer’s breach of a collective agreement or statute. If it has, the arbitrator must determine what impact that breach had on the validity of the resignation.

(i) Foundational Principles

11In Sun Oil Employee’s Assn. v. Sun Oil Co., (1968), 19 L.A.C. 365, Arbitrator Weiler drew on U.E.W., Local 512 and Anchor Cap & Closure Corp. of Canada Ltd. (1949), 1 L.A.C. 222 and U.E.W., Local 514, and S.C.M. (Canada) Ltd. (1964), 1964 CanLII 962 (ON LA), 15 L.A.C. 332 in support of the conclusion that the essential elements of a valid resignation consist of both a subjective intention to quit and sufficient objective conduct to confirm the subjective intent. As described by Arbitrator Weiler, an employee can lose the benefits of their job under a collective agreement by way of a resignation only by “some objective acts which show that he really means what he says, that he appreciates the significance of what he is doing.” In assessing an employee’s objective conduct, an arbitrator must be satisfied that it is the result of a continuing subjective purpose of quitting. Part of this assessment requires a determination as to whether there is any “confirming conduct” that establishes that the decision to resign was made with “realization of the consequences that would follow.”

12In University of Guelph and Canadian Union of Public Employees, Local 1134 (1973), 1973 CanLII 2062 (ON LA), 2 L.A.C. (2d) 351 Arbitrator Shime reviewed a number of cases (including those cited above) before offering the following conclusion on the appropriate approach to cases of purported resignation:

The net result of the cases clearly establishes that absent any other conduct the expression or uttering of words to the effect that an employee is quitting are not sufficient to result 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 explains why some boards have reinstated the grievor even after he changed his mind. Implicit in these cases is the understanding and recognition by arbitrators that 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. Boards of arbitration have then 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 intend to sever the relationship.

13In Metropolitan Toronto (Municipality) Commissioners of Police v. Police Assn. (Metropolitan Toronto), (1978) 1978 CanLII 3406 (ON LA), 18 L.A.C. (2d) 7, Arbitrator Adams noted that an “emotional verbal outburst” in and of itself, will not satisfy the requirements for a valid resignation. Rather, “something more is required.” According to Arbitrator Adams the “something more” is intended to confirm that “any expressed intention was in fact intended”.

14In Coca-Cola Ltd. v. B.F.C.S.D., (1980) 1980 CanLII 4112 (ON LA), 26 L.A.C. (2d) 354, Arbitrator Beck found that absent objective conduct over a period of two weeks following the grievor’s resignation, he would have had “extreme difficulty” finding there was a true subjective intent to quit in circumstances before him. Arbitrator Beck found that the grievor’s resignation amounted to an “emotional outburst” that occurred under “stressful circumstances” and that the grievor suffered from a “serious nervous condition and high blood pressure.”

15In Nova Scotia Civil Service Commission and Nova Scotia Government Employees Union, (1986) 1986 CanLII 6721 (NS LA), 27 L.A.C. (3d) 120, Arbitrator Outhouse quoted from N.S.G.E.U on behalf of Paula MacDonald and Civil Service Com’n (December 18,1981) (unreported) (Outhouse). In the unreported 1981 decision, after having reviewed many of the cases referred to above, Arbitrator Outhouse noted that arbitrators have increasingly concluded that where resignations are tendered in “emotionally charged circumstances”, there should be a “reasonable period for reflection” before concluding that resignation was a “true” reflection of their desire to end the employment relationship.

16According to Arbitrator Outhouse, Arbitrator Beck’s decision in Coca-Cola, supra, is the “frankest statement” of the arbitral approach he endorsed. In reaching this conclusion, Arbitrator Outhouse included the following excerpt from Coca-Cola, supra:

There is obviously a fine line between an intention to quit followed by a change of mind, and circumstances which cause an employee to indicate that he is quitting followed by a dispassionate consideration that leads the employee to the realization that that was not his true intent. The reality may well be that the act of quitting is such a final decision on the part of the employee that arbitrators are not willing to reach that conclusion unless there is conclusive evidence that that was the employee’s intention in all of the circumstances, such circumstances including a reasonable period of time for consideration of the situation. (emphasis added in unreported 1981 decision of Arbitrator Outhouse)

17Similarly, in Vernon Jubilee Hospital v. B.C.N.U., (1992), 1992 CanLII 14438 (BC LA), 32 L.A.C. (4th) 1, Arbitrator Bruce noted that evidence of objective conduct going to a continuing desire to resign is necessary where a resignation is tendered in circumstances involving emotional duress or upset. Arbitrator Goodfellow reached a similar conclusion in Goodyear Canada Inc. v. U.S.W.A., Local 189, (2002) 107 L.A.C. (4th) 289. In that decision Arbitrator Goodfellow noted that a while a “pure change of heart” may not demonstrate the ineffectiveness or invalidity of a resignation, it may be sufficient for an employee to establish that a resignation was “the product of duress or emotional upset.”

(ii) Conduct under emotional duress/upset

18Next, the Union relied on a series of cases that stand for the proposition that conduct that occurs while an employee is still under emotional duress or upset (or occurs shortly after the incident leading to the emotional unrest) may not be indicative of actual objective intent to resign. In Toronto District School Board v. C.U.P.E., Local 4400, (2003) 2003 CanLII 89635 (ON LA), 117 L.A.C. (4th) 289 Arbitrator Shime noted that purportedly objective conduct that is influenced by “an impaired emotional state” may not demonstrate an ongoing desire to resign. Arbitrator Shime also noted that in these types of cases, an arbitrator is required to consider the employee’s state of mind over a reasonable period of time to determine if the employee really intended to resign.

19Arbitrator Dissanayake also discussed the effect of an employee’s emotional upset on purported confirmatory conduct. In Ottawa (City) v. C.U.P.E., Local 503 (2008), 179 L.A.C. (4th) 214, he wrote as follows:

The conduct of the grievor relied upon by the city also, in my view, does not constitute objective conduct confirmatory of his subjective intention, because that conduct did not take place after the grievor had an opportunity to consider his situation without the stress he obviously felt at the time. The writing of the letter of resignation and the arranging of his locker to cleaned out occurred in quick succession over a brief period of time, soon after he had expressed his subjective intention. At the time the grievor was still under the same stressful circumstances as when he first communicated his subjective intention to resign.

20While noting that the facts in Ottawa (City) are clearly distinguishable, the Union argued that the principle that conduct engaged in while still under emotional duress should not be seen as confirmatory of a desire to resign is applicable to the facts of this case.

21The Union also relied on British Columbia (Workers’ Compensation Board) v. Workers Compensation Board Employees Union (1987), 31 L.A.C. (3d) 120. In that decision, Arbitrator Larson wrote that “[t]he more that the objective conduct continues to be influenced by the state of affairs that existed at the time of the resignation, the less confirmatory it will be.”

22Finally (on this point) the Union noted that in Vernon Jubilee Hospital, supra, Arbitrator Bruce concluded that the act of writing and delivering the grievor’s resignation letter was one “continuous act”. In the circumstances, where the act of writing and delivering a resignation occurred in close temporal proximity and while the grievor was still influenced by the emotional upset leading to decision to resign, those actions spoke only to her subjective intent. The act of delivering the resignation letter does not, in and of itself, have any confirmatory value in the circumstances.

23The Union argued that the Grievor provided clear and compelling evidence that her state of mind and her emotions were spiralling during and after the conversations with Mr. Craddock. She was emotionally upset while she drafted, and then sent, her resignation email. She also testified that while she was able to drive herself home she was not sure how she was able to do it, and that, in her opinion, she was not fit to drive a bus. She indicated that she was upset when she got home and that she crawled into bed and cried herself to sleep.

24The Grievor testified that she did not emerge from her emotional upset until after she awoke later that evening. It was only then that her emotional upset dissipated and she realized the significance of what she had done.

25The Union also argued that contemporaneous documents supported the Grievor’s testimony. Specifically, the Union noted that in her resignation email, the Grievor wrote that she had just received a “very upsetting call” and that her “mental and physical wellbeing” was not good. In the email she sent seeking to rescind her resignation, the Grievor wrote that she was very upset and affected by her conversation with Mr. Craddock, that she was acting rashly and that she was not thinking clearly.

26The Union emphasized that the Grievor was not thinking clearly when she failed to call in for the second part of her split shift on November 20th. The Grievor testified that she realized that that was a mistake but she also indicated that she was upset at the time, had already emailed in her resignation, and was not thinking about the implications of her conduct. The Union argued that in light of the Grievor’s evidence that she was not thinking about the implications of her conduct, her conduct cannot be seen to be reflective of an objective continuing intent to resign. In short, according to the Union, the Grievor gave no thought, either in favour of her ongoing desire to resign or opposed to it, to the decision not to call in for the second part of her split shift.

27The Union also argued that all of the conduct that preceded waking up after her sleep on November 20th occurred while the Grievor was in a state of emotional upset. Based on the cases discussed above, that conduct is not indicative of an ongoing desire to resign.

28The Union noted that the Grievor’s next shift (had she not resigned) was scheduled for the afternoon of November 21. By this time she was feeling better and thinking more clearly. According to the Union, the Grievor’s attempt to retract her resignation preceded any obligation to report to work on the 21st. As such, the Union submits that her failure to attend work on November 21st (or call-in) cannot be interpreted as objective conduct of her ongoing desire to quit.

29Finally, the Union noted that the Grievor sought to retract her resignation in a timely manner. She began to talk with family and friends later that night. She initiated contact with the Union the next day. Later that same day she wrote the email seeking to rescind her resignation. That email was sent just over 24 hours after first resigning.

(iii) Resignation in response to Employer conduct

30Third, the Union argued that the Employer’s conduct contributed directly to the Grievor’s resignation and that this was a factor that should be considered in determining the validity of her resignation. The parties agreed in the ASF, that the Employer had no legal authority to extend the Grievor’s probationary when Mr. Craddock told the Grievor that her probation would be extended.

31In Goodyear, supra, Arbitrator Goodfellow noted that the employer in that case breached the grievor’s collective agreement and statutory rights and that in doing so the employer made a “direct and immediate contribution to her resignation.” Similarly, in Temiskaming Lodge Ltd. v. C.U.P.W., Local 3866 (2006,) 2006 CanLII 53947 (ON LA), 152 L.A.C. (4th) 180, Arbitrator Randall found that if the employer had not breached the Employment Standards Act by failing to recognize its duty to provide the grievor with 10 days of emergency leave, the grievor would not have resigned her employment. In the circumstances, the arbitrator concluded that the employer’s breach of the ESA rendered the grievor’s resignation null and void.

32While the Union did not argue that the Grievor’s resignation in this case should be null and void because of the Employer’s admitted mistake in telling her that her probationary period would be extended, it did argue that it was a factor that should be taken into account. According to the Union, the Employer’s conduct had a direct and immediate impact on the Grievor’s decision to send the November 20th email. In brief, the Union argued that if the employer had not mistakenly told the Grievor that her probation was going to be extended she would not have resigned.

B. Position of the Employer

(i) Subjective Intent and Confirmatory Objective evidence

33The Employer argued that the Grievor’s resignation should be upheld. According to the Employer this is a case of an employee who formed a decision to quit and followed through on that intention. She later regretted her decision. These are not the kinds of facts that warrant arbitral intervention.

34The Employer agreed that the test for a valid resignation consists of a subjective intention to quit and confirmatory objective conduct confirming the subjective intention. The evidence showed that the Grievor had a subjective intention to quit and that she then engaged in objective conduct consistent with an intent to end her employment. The Employer submitted that the evidence does not establish that the Grievor was so emotionally distraught on November 20th that her resignation email does not show her true intent to resign. The fact that she subsequently regretted her decision does not provide a sufficient basis to justify intervening.

35The Employer relied on the decision of Arbitrator Brandt in Meadow Park Nursing Home and Service Employees, Local 210, 1993 CanLII 16759 (ONLA) for the following expression of the test to be applied to voluntary resignations:

The law in this area is quite clear. In order that an employee be found to have effectively resigned her employment it must be demonstrated not only that she had a “subjective intention” to resign but also that this intention be confirmed by “some objective conduct”.

36According to the Employer, there is an important distinction between actions that are unintended and those that are unwise or foolish. While the former may form the basis for rescinding a resignation the same cannot be said for the latter. As noted by Arbitrator Brandt, it is only where the evidence establishes that an employee did not intend to resign that arbitrators will intervene.

(ii) Grievor did not establish sufficient level of upset

37The Employer argues that mere upset, is not in and of itself, sufficient to justify allowing an employee to rescind their termination. There must be a degree of emotional distress such that the words used to resign do not reflect a true desire to quit. In addition, the Employer argued that where an employee demonstrates a lower level of emotional distress, less objective confirmatory conduct would also be required.

38The Employer relied on O.P.S.E.U. (Cusack) v. Ontario (Ministry of Community Safety and Correctional Services), 2016 CanLII 7452 (ON GSB) and Motorways Direct and Teamsters Union, Local 880 (1988), 1988 CanLII 9263 (ON LA), 35 L.A.C. (3d) 11. In Motorways (quoted with approval in O.P.S.E.U. (Cusack)) Arbitrator M. Picher distinguished between “the stress that any individual faces when he or she is called upon to make a difficult choice” and the “pressure or duress which impacts on an employee as a result of threats or inducements” by his employer. Arbitrator Picher indicated that at its core the question to be assessed is whether the employee was in such a state of mind that their resignation cannot be considered to “free and voluntary.” In answering that question, Arbitrator Picher concluded that the evidence did not support the conclusion that the grievor was so emotionally impaired that it affected her ability to exercise independent judgment.

39Turning to the facts of this case, the Employer argued that the Union was unable to satisfy the onus of showing that the Grievor was sufficiently emotionally upset that it affected her ability to exercise independent judgment. In short, the Employer submits that whatever level of emotional upset the Grievor was feeling it was not enough to affect her ability to know, and appreciate, what she was doing.

40In addition, some of the typical indicia in resignation cases, for example an argument with management or submitting a resignation in a verbal emotional outburst, were absent in this case. The Grievor acknowledged that during her call, Mr. Craddock did not yell at her, did not insult her, and did not swear at her. The evidence shows that after her conversation with Mr. Craddock, the Grievor sat in her car for approximately 20-30 minutes before sending her resignation email. There was no argument or immediate emotional outburst.

41The Employer argued that the Grievor’s claim that she suffered from a panic attack and that she did not recover from her state of emotional upset until much later that day was belied by her evidence. According to the Employer, the Grievor agreed that it took her quite a bit of time to write the email on her phone and that she took time to calm down and consider her options. This evidence stands in stark contrast to her claim of a panic attack and establishes that the Grievor was sufficiently grounded to weigh the pros and cons of her options before sending her resignation email.

42The Employer argued that while the Grievor may have been upset, she was capable of forming independent judgment. Her resignation email was well-written and clearly organized. The Grievor was able to drive herself home without help. When she got home she made herself something to eat. None of this, according to the Employer, is indicative of an individual under such emotional duress that they are unable to form or act on an ongoing objective desire to quit.

43The Employer also took the position that there were a number of alternatives available to the Grievor other than resigning. Mr. Craddock told the Grievor that she should go talk to the Union. In addition, he told her that they would meet the following week with the Union to discuss her probation. In the circumstances, the Grievor could have just waited for that meeting. She could have filed a grievance.

(iii) Employer’s mistake does not vitiate intent to resign

44Finally, on the issue of the Employer’s conduct, the Employer acknowledged that Mr. Craddock erred when he sought to extend the Grievor’s probation. However, from the Employer’s perspective, while this was bad news for the Grievor, the error was not so egregious or emotionally impactful that she could not form a subjective intent to quit.

45By way of comparison, the Employer noted that the employer conduct at issue in O.P.S.E.U. (Cusack), supra, and Wellesley Central Hospital and Service Employees International Union, Local 204, 1996 CanLII 20321 was far more egregious and yet in both of those cases the arbitrators concluded that the resignations were voluntary and dismissed the grievances. In this case, there was a breach of the probationary clause in the Collective Agreement. The Grievor did not lose her employment. Nor did she lose any income or access to her benefits. In addition, as set out above, there was a meeting scheduled with the Union to discuss the issue. The Employer did not suggest that she should quit. In the circumstances, and when compared to the facts in O.P.S.E.U., supra, and Wellesley Central Hospital, supral, the breach in this case was far less severe and does not mean that the Grievor could not form an intention to quit.

(iv) Where level of emotional upset is low so too is need for objective confirmatory conduct

46The Employer argued that in a case such as this, where for the reasons already discussed, the Grievor’s level of emotional upset did not impede her ability to form an intention to quit, the need for objective conduct confirming her intention to quit is lessened. According to the Employer, this reduced need for objective confirmatory conduct distinguishes this case from some of the cases relied on by the Union (Coca-Cola, supra, for example) where the facts of Employer were far more egregious. In a case like that it makes sense that a significant amount of confirmatory evidence would be required. However, that is not this case.

47That being said, the Employer also argued that there was significant objective evidence of an ongoing intent to resign. The Employer noted that the Grievor did not call in for the second part of her split shift on November 20. This conduct is consistent with someone who had quit their employment.

48The Employer argued that the Grievor’s failure to call in or report for work on November 21st (for either portion of her split shift) is also consistent with the conduct of someone who had resigned. According to the Employer, over the course of November 20 and 21, the Grievor missed the equivalent of three start times. That is strong indication of a subjective intention to quit.

IV Analysis

49This is a well-trodden area of the law. The early cases of Anchor Cap & Closure Corp of Canada, Ltd. and U.E.W., Local 512, Sun Oil Employees Assn, and Metropolitan Toronto (Municipality) Commissioners of Police, supra, set the framework for the applicable analysis in resignation cases. Put simply, for a voluntary resignation to be valid there must be a subjective intention to quit and ongoing objective conduct supporting that subjective intention. As described by Arbitrator Adams in Metropolitan Toronto (Municipality) Commissioners of Police, supra, objective confirmatory conduct, is necessary because the act of resignation often occurs “under personally trying circumstances.” In those kinds of trying circumstances, a verbal resignation may not reflect the employee’s true wishes.

50This grievance raises three issues within the broader resignation framework. First, was the Grievor under emotional duress at the time that she sent the resignation email. Second, how long was the Grievor emotionally upset and what impact did her emotional upset have on her subsequent conduct. Third what role, if any, does the Employer’s mistake in indicating they would extend her probation period play in the assessment of her resignation.

51The cases cited above, uniformly establish that where a resignation is offered in “trying circumstances” or under “emotional stress or duress”, conduct confirming the intention to quit is necessary. Arbitrator Outhouse applied this approach in Nova Scotia Civil Service Commission, supra, where having found that the grievor’s resignation flowed from “frustrations and difficulties” the grievor was experiencing at work, he concluded that there was insufficient objective conduct on the part of the grievor to ground a continuing intent to resign.

52Arbitrator Bruce also applied this approach in Vernon Jubilee Hospital, supra. According to Arbitrator Bruce, where there is evidence of severe emotional upset, an arbitrator can only be satisfied an employee truly intended to resign where there is additional objective conduct supporting that conclusion. In that decision, the Arbitrator found that the grievor wrote letters of resignation under “severe, emotional stress” and concluded that there was insufficient objective conduct supporting an ongoing subjective intention to resign. Arbitrator Goodfellow reached a similar conclusion in Goodyear, supra.

53The facts in Vernon Jubilee Hospital, and Goodyear supra, are clearly distinguishable from the facts in play in this matter. In both of those cases, the conduct leading to the grievor’s emotional upset appears to have been far more severe. That being said, these decisions nonetheless indicate that objective conduct is required to confirm the ongoing subjective intention to end the employment relationship when the decision to resign is tendered in circumstances involving emotional upset or duress.

54Applied to the facts of this case, I am satisfied that the Grievor was under considerable emotional stress during and following her conversations with Mr. Craddock and that she remained in such a state until after waking up from her sleep later that evening. The Grievor testified that she was upset and confused by what Mr. Craddock told her. She described herself at various points as crying and sobbing. She indicated that she felt vulnerable, in a state of shock and that her “emotional health was spiralling”. She felt “out of control” and indicated that she had a panic attack. She concluded that she thought that the only way to get away from the situation was to resign.

55One piece of evidence requires clarification. The Employer argued that the Grievor’s testified that she calmed down while sitting in her car after her conversation with Mr. Craddock and before sending the resignation email. The Union argued that the Grievor’s evidence was that she tried to calm down but was unable to do so.

56I am satisfied that the Grievor testified that following her second conversation with Mr. Craddock, she took 10-15 minutes to try and calm down before writing and sending her resignation email. Her evidence was clear however, that she was unable to calm down at that time. She remained in a state of serious emotional upset. The Grievor testified that she did not know how she managed to drive herself home and that she knew she was not emotionally able to work the second part of her split shift that day.

57When she got home, the Grievor indicated that she felt like she had been “side-swiped by a Mack truck”. She was in a fog. Her emotions were “raw and real.” She was emotionally and physically exhausted. According to the Grievor she sobbed herself to sleep. The Grievor slept for 5-6 hours. She indicated that when she woke up she felt remorse for her actions.

58In reaching this conclusion I would also offer the following comments with respect to the degree of emotional upset felt by the Grievor. As set out above, the Employer argued that the Grievor’s conduct belied the suggestion that she was so emotionally upset that her conduct did not display an objective intent to resign. As part of this argument, the Employer noted in a number of cases (set out above) examples where grievors were “more emotionally upset” or had gone through more difficult circumstances. According to the Employer, this case, and the degree of upset, was relatively mild by comparison.

59As noted at the very outset of this decision, the case law on resignations tendered under emotional duress or upset is for the most part uniform. The analytical approach in particular is well established. Part of that approach includes an acknowledgement that these cases are fact specific. What constitutes or causes “emotional upset” or “emotional duress” will vary from individual to individual and from situation to situation. There is no brightline test establishing that certain conduct will always cause the required degree of upset or duress to vitiate an intent to resign (or conversely that certain conduct will never cause sufficient upset or duress to undermine a resignation). Put simply, conduct that may cause certain employees to experience a severe level of emotional upset may not have a similar effect on another employee. Each resignation must be assessed based on the specific employee and the context and circumstances prevailing at the time.

60It is this degree of specificity that makes factual comparisons between the causes and extent of emotional upset experienced by grievors in different cases particularly unhelpful. There can be no doubt that objectively speaking the grievor in O.P.S.E.U (Cusack), supra, had to deal with far more trying circumstances prior to resigning than the Grievor in this matter did. That being said, the circumstances surrounding the decision to resign in that case were distinguishable on a number of factual grounds. Given these factual differences, comparing what one grievor went through against what another grievor went through, does not result in an apples to apples comparison and does not help an arbitrator determine whether the grievor was emotionally upset, whether they engaged in objectively confirmatory conduct, or whether the resignation was valid.

61In this case, I am satisfied that the Grievor exhibited a degree of emotional upset at the time she sent her resignation email and for a number of hours thereafter. The conduct at issue can only be understood in the context of that ongoing emotional upset.

62In Toronto District School Board, supra, Arbitrator Shime commented on how purportedly objective conduct that occurs while an employee remains influenced by emotional duress or upset should be interpreted by arbitrators attempting to determine if an employee has tendered a valid resignation. In that decision, Arbitrator Shime quoted from the decision of Arbitrator Larson in British Columbia (Workers’ Compensation Board) noting that Arbitrator Larson indicated that “ostensible conduct which is influenced by an impaired emotional state” may not confirm an intention to quit. As described above, Arbitrator Dissanayake reached a similar conclusion in Ottawa (City).

63Applying the analysis of TDSB 2003 (and British Columbia (Workers Compensation Board)) and Ottawa (City), I am satisfied that any conduct by the Grievor that preceded waking up and may have otherwise appeared confirmatory of a desire to resign was influenced by her emotional state such that it did not reveal a true ongoing desire to resign. The Grievor’s evidence was clear in this regard. She was upset by her conversations with Mr. Craddock. I am satisfied that that upset did not begin to clear up until after she awoke from her sleep sometime during the evening of the November 20, 2024. While she tried to calm down prior to sending her resignation email, the Grievor’s evidence was that she was unable to do so, and that she remained unable to do so for several more hours.

64I am also satisfied that evidence going to the Grievor’s objective ongoing conduct that supported an ongoing intent to resign was not persuasive or compelling. In that regard, as was the case in Vernon Jubilee Hospital, the act of writing and sending the email constituted one continuous act, occurring while the Grievor was emotionally upset. As such, it does not amount to objective ongoing confirmatory conduct but rather speaks only to the Grievor’s subjective intent.

65Similarly, the Grievor’s failure to call in or notify anyone that she would not be coming into work for the second part of her split shift on November 20th is not particularly persuasive objective conduct. The second half of the Grievor’s shift was scheduled from 2:01 p.m. to 5:53 p.m. The Grievor’s uncontested evidence was that she got home, had a bite to eat and then went to sleep at approximately 1:00 p.m. At that time she did not set her alarm or notify anyone that she would not be coming back for the second part of her shift. As such, the decision not to call in to work was effectively made at that point in time, when she went to sleep. At that time, as already canvassed above, the Grievor remained emotionally upset. Accordingly, that decision cannot be given very much weight in terms of confirming an ongoing desire to quit.

66Finally, the Grievor’s shift on November 21, 2024 was scheduled to start at 2:02 p.m. By that time, the Grievor had already spoken with some family and friends and reached out to the Union about trying to rescind her resignation. She felt remorseful for her decision. In those circumstances, and in light of the fact that the Grievor thought she had resigned, and had received confirmation of her resignation being accepted, it is difficult to conclude that her failure to call-in or show up for the start of her shift on November 21, 2024 demonstrated a strong ongoing objective desire to resign.

67As such, for all the reasons set out above, I am satisfied that the Grievor was emotionally upset when she sent her resignation email and for a number of hours thereafter. As such, conduct that might otherwise have been indicative of an ongoing desire to resign is far less probative of her objective intent. I note that I agree with the Employer that the extent of confirmatory conduct required will vary with the degree of emotional upset (and therefore the uncertainty with respect to the subjective intent). However, in this case it appears that the Employer underestimated the Grievor’s degree of emotional upset and overestimated the significance of any purportedly confirmatory conduct.

68Finally, I agree with the Union that none of the events at issue would have occurred without the Employer’s mistake in telling the Grievor that her probation would be extended. While this mistake does not, in and of itself, justify voiding the resignation, it is an important factor that must factor into the analysis.

69Taking all of the above into consideration, I am satisfied that the Grievor did not have a continuing intent to resign. Accordingly, the grievance is upheld.

70The parties agreed that they would bifurcate any other issues regarding remedy. The matter is remitted to the parties to address any outstanding issues.

71I remain seized.