1735-99-ES Dieter Schweda, Applicant v. R. Reininger & Son Ltd. and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 41007542

BEFORE: John Morgan Lewis, Vice-Chair.

APPEARANCES: Dieter Schweda on his own behalf; Kevin D. MacNeill, Roger Bate, Jane MacLellan; Harry Baber and Aurel Wusatiuk on behalf of Reininger & Son Ltd.; Karima Chatur on behalf of the Ministry of Labour.

DECISION OF THE BOARD; December 13, 2000

1. This is an application under section 68 of the Employment Standards Act, R.S.O. 1990, c.E.-14 as amended (the “Act”) for review of the refusal of an Employment Standards Officer to issue an order.

2. The issue in dispute is whether the claimant quit his employment with the respondent, R. Reininger & Son Ltd. (“Reininger” or the “company”) on July 31, 1998 when he handed in his resignation. The claimant alleges that he was constructively dismissed and that he had no other option but to resign from his position on July 31, 1998 because he had been continually harassed by various officials of Reininger ever since he had filed an assault charge with the police against his immediate supervisor. The assault allegedly took place on August 12, 1997. The claimant seeks a declaration that he was constructively dismissed and asks the Board to award him, inter alia, termination pay as well as damages resulting for the suffering he received from the assault and the ensuing harassment.

3. Counsel for Reininger maintains that the claimant resigned from his position on July 31, 1998 and is not entitled to termination pay. Reininger denies that an assault took place on August 12, 1997 and that any official of Reininger harassed the claimant at any time during his tenure with the company and particularly after the alleged assault. Reininger asserts that the claimant was not constructively dismissed and alternatively, the Board does not have the jurisdiction to grant the form of monetary relief requested by the claimant.

4. The Board heard the testimony of the claimant as well as four witnesses called by Reininger. In making the findings and reaching the conclusions set forth in this decision, the Board has duly considered all of the oral and documentary evidence, the submissions of counsel, and the usual factors germane to assessing evidentiary credibility and reliability, including the firmness and clarity of the witnesses’ respective memories, their ability to resist the influence of self-interest when giving their version of events, the internal and external consistency of their evidence, and their demeanour while testifying. The Board has also assessed what is most probable in the circumstances of the case, and considered the inferences, which may reasonably be drawn from the totality of the evidence.

5. Where there has been a conflict in the testimony between that of the claimant and the witnesses who testified on behalf Reininger, I have preferred the evidence of the latter. Frankly, much of the claimant’s evidence was not believable due in large part to his propensity for embellishing nearly all aspects of his testimony. It became abundantly clear throughout the course of the hearing that the claimant was unable to resist the influence of self-interest in presenting his evidence. By way of contrast, I found the testimony of the witnesses called by Reininger to be frank, forthright and consistent.

6. The claimant was not represented by counsel. As a result, I advised the claimant at the commencement of the hearing that there was no requirement that parties appearing before the Board retain legal counsel. The Board often conducts hearings where one or more of the parties are not represented by legal counsel. I advised the claimant, however, that hearings before the Board were legal proceedings and that the Board’s role was to adjudicate the issues in dispute. The Board could not act as an advocate for or as an advisor to any party merely because that party was not represented by legal counsel. Such would be inconsistent with the Board’s role as a neutral adjudicator.

The Facts

7. Reininger carries on the business of manufacturing in the automotive industry. It operates out of a plant located in Newmarket and employs approximately two hundred employees. The claimant commenced working with Reininger on October 15, 1985 when he was hired as a tool and die maker. There were fourteen employees in the tool and die department. The claimant described his tenure with the company up until the incident which took place on August 12, 1997 as being uneventful. He got along with his fellow employees and the company had never raised a concern regarding his work performance. All of the employees in the tool and die department received the same raises and annual Christmas bonus. The only concern the claimant noted was that his relationship with his immediate supervisor, Aurel Wusatiuk (“Wusatiuk”) was strained at times over the distribution of overtime and over what the claimant perceived to be an alleged anti-German bias exhibited by Wusatiuk. The claimant is of German descent.

8. On August 12, 1997, the claimant reported to work at his usual time of 7:00 a.m. He was speaking with a fellow employee and was not at his workstation when Wusatiuk arrived at the plant at approximately 7:10 a.m. Wusatiuk walked past the claimant on his way to his office and requested that the claimant assist in a rush job. The claimant told Wusatiuk that he could not assist in the rush job as he was in the middle of other work. Wusatiuk expressed his doubts that the claimant was in the middle of a job as he was not at his working station.

9. Wusatiuk proceeded to his office where he commenced to work on routine paperwork. According to Wusatiuk, the door to his office was closed. A few minutes later the claimant entered the office without knocking and demanded an explanation from Wusatiuk as to why he had been so short with him in front of other employees. Wusatiuk responded that he did not owe the claimant an apology and that there was a lot of work to be done and that the claimant should leave the office and return to his workstation. Wusatiuk testified that when he stood up from his desk the claimant was blocking him. Wusatiuk then pushed the claimant out of the office and closed the door. The claimant testified that Wusatiuk punched him when in the office and then slammed the door on his shoulder. The claimant also testified that out of fear he accused Wusatiuk of trying to kill him and that Wusatiuk replied that he would kill the claimant if he ever entered the office again. Wusatiuk denied that he punched the claimant or that he ever threatened to kill him. As noted previously, I prefer the evidence of Wusatiuk.

10. The claimant returned to his workstation and continued to work for the remainder of the day. The claimant saw his family doctor that night but testified that he had previously made the appointment some time earlier. According to the claimant, he was experiencing pain in his shoulder as a result of being punched and was prescribed medication by his family doctor.

11. On August 13, 1997 the claimant approached Henry Ghazanian, a fellow employee in the tool and die department and the Safety Chairman for Reininger. The claimant requested that an accident report be filled out with respect to the incident in the office as he had suffered an injury. Ghazanian filled out the accident report and presented a copy of the report to Wusatiuk. A meeting took place later that morning between Ghazanian, Wusatiuk and the claimant to discuss the report. The tone of the meeting was confrontational and nothing was resolved.

12. Over the next week, the claimant continued to work under the supervision of Wusatiuk without further incident. The claimant had, however, contacted the police and pressed charges against Wusatiuk for assault. Approximately one week after the office incident, Wusatiuk was working at the plant when he was formally charged and arrested by the police. The charges were subsequently dropped by the Crown on the condition that Wusatiuk sign a peace bond, the terms of which did not permit Wusatiuk to communicate or be in contact with the claimant except as necessary for the purpose of employment.

13. Roger Bate (“Bate”) has been employed by Reininger since October 1975. He has been the Operations Manager since April 1989 and is responsible for all aspects of manufacturing, quality control, plant employees and purchasing. Essentially, Bate is responsible for all areas of the company except finance and sales.

14. Bate was provided with a copy of the accident report but took no action as he viewed it as a minor incident as the claimant had not lost any time from work. Bate obviously did not realize how serious the claimant viewed the incident. On the day Wusatiuk was arrested, Bate received correspondence from the claimant’s lawyer in which allegations of a serious nature were directed at Reininger. The claimant’s lawyer referred to “sadistic abuse” the claimant and others had been suffering at the hands of Wusatiuk over the last twelve years. Reference was also made to ethnic prejudice shown by Wusatiuk, the alleged physical assault of the claimant and the uttering of a death threat.

15. Bate testified that he normally does not get involved in situations where an employee and a supervisor are having difficulty working together. If they are unable to work out the issues by themselves the matter is typically referred to human resources. The arrest of Wusatiuk and the allegations contained in the letter from the claimants’ lawyer forced Bate to take a more direct role and to deal with the matter in a more formal fashion. Acting on legal advice, Bate retained an outside independent investigator to conduct a review of the incident as well as to canvass employee opinion on the conduct and ability of Wusatiuk as a supervisor. The investigation commenced in September and comprised mainly of independent interviews with all of the employees working in the tool and die department. The claimant and Wusatiuk were also interviewed.

16. According to Bate, the conclusions from the investigation were: there was no evidence of ethnic prejudice displayed by Wusatiuk; no employee other than the claimant had complained of inappropriate behaviour by Wusatiuk; and the allegation that the claimant had been physically assaulted was unfounded.

17. The investigator made two recommendations. First, that Reininger institute a formal policy on harassment in the workplace. Bate advised that the company has instituted such a policy. The second recommendation was that the company should facilitate the claimant and Wusatiuk in reconciling their differences.

18. Bate attended a meeting with the claimant on September 17, 1997. Also attending the meeting were Wusatiuk, Ron Reininger, the owner of the company, and Ailine Kent, manager of Human Resources. Throughout this meeting the claimant was adamant that he would not work with Wusatiuk. The claimant was asked if there was another department within the company to which he could be transferred. The claimant responded that he was a skilled and experienced tool and die maker and that he had no idea where else he could work within the company.

19. A follow-up meeting took place on September 24, 1997. Attending this meeting were Ailine Kent, Bate and the claimant. The claimant confirmed that he had not changed his mind and that he still did not wish to work with Wusatiuk. The claimant was asked again if he had any thoughts as to where he could be transferred to within the company. The claimant indicated that there was no other department within the company to which he wished to be transferred.

20. Bate ultimately decided to keep the claimant in the tool and die department and addressed the claimant’s concerns by not requiring him to report to Wusatiuk. Bate assigned Harry Baber (“Baber”) to be responsible for supervising and assigning work to the claimant. Baber has been employed by Reininger for twenty-three years and is currently the lead hand in the tool and die department. Baber testified that the claimant reported directly to him from the time of Bate’s decision in September 1997 until the claimant ceased his employment with Reininger on July 31, 1998.

21. The claimant testified that during that period of time he was the subject of a campaign of harassment by the company. The claimant also claimed that the type of work assigned to him was significantly altered after the incident with Wusatiuk. Baber testified that he had not witnessed the claimant being harassed in any manner by representatives of management or by fellow employees of Reininger. Baber also testified that the claimant’s job duties may have been altered but that was the result of being directly supervised by Baber. As a lead hand, Baber performed smaller tasks as he routinely would be interrupted to deal with other issues requiring his attention in the department. Baber conceded that the claimant might have been assigned more of these smaller jobs during the time he was working with him. Baber indicated, however, that these smaller jobs were the work of a tool and die maker and that the rate of pay was not dependent upon the type of work assigned. The Board notes that the claimant made no complaint with respect to his assigned work duties until the filing of this application.

22. Baber testified that although the claimant performed his duties satisfactorily, in many instances he “failed to put in that extra effort when required”. According to Baber, the claimant’s “heart was no longer in his work”. Baber provided an example to illustrate the claimant’s poor attitude. A tool and die maker at Reininger will sometimes be called upon to make repairs to a die located in a press. It is preferable if such a repair can be performed with the die in the press as the set-up men who operate the presses prefer to have the presses operating at all times and it is quicker to effect repairs to the die if it remains in the press. In some instances it is not possible to effect repairs while the die is in the press. It is a judgment call on the part of the tool and die maker. Baber testified that the claimant never effected repairs to a die located in the press but rather, would invariably have it removed from the press and brought to his work station. While the die would eventually be properly repaired, it would take significantly longer than if the repair was carried out while the die remained in the press. Baber indicated that the claimant’s practice caused some degree of frustration amongst the set-up men who ran the presses. While not warranting discipline, this practice of the claimant, as viewed by Baber, demonstrated a lack of co-operation and consideration for the set-up men working on the presses.

23. The claimant alleges that further examples of the harassment he received from Reininger are demonstrated by the awarding of a Christmas Bonus in December 1997 and a wage increase in January 1998. According to the claimant, in the years a Christmas bonus was awarded by the company, each employee in the tool and die department received the same amount of money as a bonus. The claimant testified that with the exception of himself, all employees in the tool and die department received a Christmas bonus in 1997 in the amount of $600. Similarly, the claimant also testified that the awarding of a wage increase would the same across the board for all employees working in the tool and die department. In January 1998 the claimant alleges that Reininger provided a $0.50 per hour increase in the hourly wage rate for all employees in the tool and die department. The claimant was the only exception to this across the board wage increase as he received an increase of only $0.25 per hour.

24. Reininger disputes that all employees received the same Christmas Bonus in 1997 or that all employees in the tool and die department received the $0.50 wage increase and that the claimant was not treated improperly but that his entitlement was the direct result of his work performance for 1997. Reininger performed an employee performance evaluation which assessed employee competency for the year of 1997. The evaluation assesses employee performance based on five criteria: safety; housekeeping (keeping work area clean); productivity/performance; co-operation with other workers; and attendance/timekeeping. According to Bate, the evaluation played a formal role in determining an employee’s entitlement to a wage increase. The awarding of a Christmas bonus was based on the same criteria but in a more informal manner partly because the formal evaluation was not yet completed by the time the Christmas bonus was handed out. Both Wusatiuk and Baber had input into the claimant’s evaluation. The final determination, however, is the responsibility of Bate.

25. The evaluation for the claimant for 1997 was introduced as evidence. The evaluation confirmed that the claimant had a good working knowledge of the technical aspects of his job and performed those duties in a satisfactory manner. The evaluation provided a low rating for the claimant, however, with respect to issues relating to working co-operatively with fellow employees as noted previously in the decision. Wusatiuk conceded that the incident, which took place on August 12, 1997, probably also played a part in the claimant’s assessment.

26. Based on his evaluation, Bate determined that the claimant would not receive a Christmas Bonus and would receive a wage increase of $0.25 per hour. Bate testified that a number of employees did not receive the full Christmas Bonus. The standard amount of the Christmas Bonus for 1997 was $600. Bate also confirmed that the standard wage increase in the tool and die department was $0.50. It would appear that not all employees received this increase for various reasons.

27. There were no other specific incidents with respect to the claimant’s employment during the spring and summer of 1998. Although there were no specific incidents, the claimant testified that he continued to be harassed by representatives of Reininger until he discontinued his employment. The claimant made a number of vague and unsubstantiated references to a campaign of harassment directed against him by Bate and other officials of Reininger.

28. The claimant tendered his resignation by way of correspondence dated July 31, 1998. It would appear that the resignation was precipitated by the claimant’s dissatisfaction with what he described as the restrictive options available to him for taking a vacation during the summer of 1998. According to the claimant, this was just another form of harassment he experienced by Reininger. As with many of the claims of harassment, however, a sensible explanation was offered by the company to explain the perceived harassment. As previously noted, only Baber had supervised the claimant since September 1997. In order to maintain this arrangement, it was necessary for the claimant and Baber to schedule their holidays concurrently. It was this requirement which apparently frustrated the claimant and caused him to tender his resignation despite the unchallenged evidence of Baber that Baber had not expressed any preference as to when their respective vacations should be scheduled.

The Decision

29. The obligations arising under section 57 of the Act to provide termination pay in lieu of notice apply in a number of circumstances, including a constructive termination. The claimant has alleged that he was constructively dismissed by being made the target of continuous harassment by officials of Reininger. Many of the allegations of harassment were vague and not supported by the evidence placed before the Board. The alleged assault which took place on August 12, 1997, however, does give the Board concern as such an incident can strike at the root of an employment contract and thereby give rise to a claim of constructive dismissal.

30. In Farber v. Royal Trust Co. (1977), 1997 CanLII 387 (SCC), 27 C.C.E.L. (2d) 163 (S.C.C.), Gonthier J. for the Court commented on the concept of constructive dismissal as follows at page 196:

Thus, it has been established in a number of Canadian common law decisions that where an employer unilaterally makes a fundamental or substantial change to an employee’s contract of employment – a change that violates the contract’s terms – the employer is committing a fundamental breach of the contract that results in its termination and entitles the employee to consider himself or herself constructively dismissed.

31. As noted, and leaving aside for the moment the alleged assault, the Board is not persuaded that Bate or any official of Reininger harassed the claimant during his tenure with the company. The perceived slights experienced by the claimant either did not occur or were satisfactorily explained by Reininger. For example, the claimant’s work duties were not dramatically altered as was claimed. The change in work duties was simply the result of the claimant being supervised by Baber. The change on the claimant’s supervisor was occasioned by the claimant’s insistence that he not report to Wusatiuk. Although the claimant clearly suspects a more nefarious intent on the part of the company, such was not the case.

32. The Board also finds that the failure to provide the claimant with a Christmas Bonus and the full departmental wage increase do not establish a claim of constructive dismissal. Baber testified that although technically proficient, the claimant did not “have his heart into the job”. This attitude was reflected in the claimant’s substandard job performance which was subsequently identified on his performance evaluation. Based on his evaluation, the claimant did not receive a Christmas Bonus but did receive a wage increase of $0.25 per hour. Did the circumstances of the alleged assault play a role in the claimant’s evaluation? Wusatiuk testified that it did. Whether it was appropriate to do so does not alter the fact that the claimant still received a wage increase, although not as much as his fellow employees in the tool and die department. The claimant’s substandard attitude alone justified this result. If it had been found that the company had inappropriately withheld from the claimant the Christmas Bonus and the full wage increase (which I have found not to be the case), those inequities are sufficient to strike at the very root of the employment contract and can give rise to a claim of constructive dismissal. In the circumstancs of this case, however, I still would not have found that the claimant had been constructively dismissed. The awarding of the Christmas Bonus and the 1998 wage increase occurred almost six months prior to the claimant tendering his resignation. Such a delay is not consistent with the claimant treating his employment relationship with the company as being terminated. The delay more properly indicates that the claimant condoned the company’s actions. In any event, this does not amount to constructive dismissal.

33. This leads me to the alleged assault. I do not accept the claimant’s evidence that he was punched by Wusatiuk or that the door was slammed on his shoulder resulting in his seeking medical attention. I prefer the evidence of Wusatiuk that the claimant entered his office uninvited and refused to leave when requested by Wusatiuk. I also accept Wusatiuk's testimony that he pushed the claimant out of his office and then closed the office door without making any further contact with the claimant.

34. Counsel for Reininger argued that the push of the claimant by Wusatiuk does not constitute an assault as the contact between the two was of a trifling or minimal nature and, although inappropriate, does not amount to a repudiation of the claimant’s employment contract.

35. Counsel for Reininger referred to a number of authorities, which provide a contextual analysis for defining an assault under the Criminal Code. Although I am obviously not required to make a determination under the Criminal Code, I find the contextual analysis adopted by the courts to be of assistance in assessing the seriousness of the actions of Wusatiuk and whether they can amount to a repudiation of the claimant’s employment contract. The Criminal Code’s definition of assault as it pertains to this case is contained in section 265(1) which reads:

265(1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly …

36. In R. v. Lepage (1989), 1989 CanLII 4548 (SK QB), 74 C.R. (3d) 368 (Sask. Q.B.) an accused was charged and convicted of assault when he pushed a fire inspector in a small office. The conviction was quashed on appeal. The fire inspector issued an order to the accused which prohibited him from selling or storing Christmas trees. Upon being notified of the order, the accused left his office and in the course of leaving pushed the fire inspector to the side. At page 371 of the decision, McIntyre J. set out the trial judge’s summation of the incident:

…I’m satisfied that, no, he waited until Mitchel came with the Fire Prevention Bylaw, probably, showed it, put it on the desk, said,, “Here it is.” And, I’m satisfied that he realizes at that moment, there is no talking, there is no way this Order is going to be rescinded by Mr. Mitchell or Mr. Fargo. And, I’m satisfied he realizes that it’s suddenly out of his hands and out of their hands and he, just, says, “Oh, I might as well as get this darn thing over with, and marches out. And, on the way out, I’m satisfied, Mr. Mitchell was probably standing in his way of, either, his egress to his coat or the door, one of the two, and he simply pushes him, not in the sense of, you know, striking out or anything of that nature but, more in the sense of get out of my way. You know, you represent, the person who brings the Order, you represent bad news, you represent more problems for me, in terms of these Christmas trees, and get out of my road. And, it was in that sense that the push is administered to Mr. Mitchell. I accept Mr. Mitchell’s testimony when he indicates he was pushed.

[emphasis added]

37. McIntyre J. held that the charge of assault could not be supported as the contact was of such a trifling nature and that there was no intention on the part of the accused to apply unlawful force. McIntyre J. referred to the following passage from the case of R. v. McGibney, 1944 CanLII 430 (SK KB), [1947] 82 C.C.C. 325 (Sask. Dist. Ct.) at page 330:

I am of the opinion that the touching to which I have referred had no significance – if it took place it was with no intent to commit violence. The assault, if any, under these circumstances must consist of threatening actions and, while I have found that the accused’s conduct was provocative and unjustified, yet I can by no process however technical find any intent to apply violence, and therefore he is not guilty.

38. McIntyre J. concluded thus beginning at page 374:

As I stated earlier, I have grave and serious doubts that this charge can be supported by the facts found by the learned trial judge, in that there was no evidence to support a finding that there was an intentional application of force by Lepage against Mitchell in the sense of there being a wrongful application of force. I am also of the view that the conduct of Mr. Lepage in this case was of such a trifling nature that the maxim “de minimus non curat lex” should apply.

39. A similar analytical framework was adopted in the case of R. v. Kormos (1998), 14 C.R. (5th.) 312 (Ont. Prov. Div.). This case involved the allegation that Peter Kormos, an elected MPP, assaulted a security guard in an attempt to assist a cameraman to obtain film footage of a family support office. Vaillancourt Prov. J. found that the accused had touched the security guard in an effort to distract him from the presence of the actions of the cameraman, but dismissed the charges on the basis that the there was not any evidence to suggest that there had been an intentional application of force, and the level of physical contact was insignificant. At page 318 of his decision Vaillancourt Prov. J. writes:

Undoubtedly, there are many instances in our day to day life when people come in physical contact with one another without first ascertaining whether there is permission/consent for one person to apply a certain amount of force upon the second individual. For example, persons attempting to exit a subway car or elevator might very well move an individual out of the way by placing their hands on the other person’s shoulder and directing them to the side. It is not uncommon for some people to put their hand on the person they are addressing. There are incidents where individuals will guide another person in a certain direction such as a teacher directing a student from the classroom or an office manager directing an employee from their office. The mere application of some force upon another does not always suggest an assault in the criminal sense. Quite the contrary, there are many examples of incidental touching that cannot be considered criminal conduct.

40. In the instant case, Wusatiuk admitted that he pushed the claimant out of his office. The degree of physical contact between the claimant and Wusatiuk was minimal and did not amount to an assault. Wusatiuk was simply attempting to have the claimant leave his office. I do not find that Wusatiuk touched the claimant with the intention of applying unlawful force.

41. Although not rising to the seriousness of assault, the actions of Wusatiuk were improper in a workplace setting. All employees have a legitimate interest in feeling safe while carrying out their duties in their place of work. That interest includes not being subjected to unwanted verbal or physical abuse from either their fellow employees or from managerial staff.

42. Although improper, the actions of Wusatiuk on August 12, 1997 were not so serious so as to vitiate the claimant’s employment contracts. In reaching this result, I have considered the actions of the company in investigating the incident and attempting to accommodate the claimant by directing Baber to act as his supervisor. I have also taken into account the length of time between the alleged assault and the tendering of the resignation during which the applicant continued to work for the company without further incident. I reject the claimant’s allegations that he was the subject of a campaign of harassment directed by Bate and other management officials of Reininger. Even if I were prepared to find that the employment contract had came to an end on August 12, 1997 (which I am not), the intervening period in which the claimant continued to work for the company indicates that the claimant himself did not treat the employment relationship as having come to an end.

Disposition

43. The Board finds that the claimant resigned from his employment with Reininger on July 31, 1998. The claimant was not constructively dismissed and is not entitled to termination pay nor to the other forms of compensation which he seeks. This application is hereby dismissed.

“John Morgan Lewis”

for the Board