Simon Metal Fabricators v. Steven Hurndell and Ministry of Labour
2781-99-ES Simon Metal Fabricators, Applicant v. Steven Hurndell and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 52006162
BEFORE: Patrick Kelly, Vice-Chair.
APPEARANCES: Lucy Mosca and Steven Nyarady appearing on behalf of the applicant; No one appearing on behalf of the Steven Hurndell; L. Eisenberg appearing on behalf of the Ministry of Labour.
DECISION OF THE BOARD; July 5, 2000
This is an employer request under section 68 of the Employment Standards Act, R.S.O. 1990, c.E-14, as amended, (the “Act”) for review of Order to Pay No. 54404 (“the Order”), issued on October 7, 1999.
The hearing in this matter was scheduled for June 15, 2000. The responding party, Hurndell (referred throughout as “Hurndell”) did not appear. The Board satisfied itself that Hurndell had received notice of the hearing, and accordingly proceeded.
The applicant was not represented by legal counsel. I indicated that the applicant was entitled to participate without legal representation, but that it bore the risk of so doing. The applicant indicated that it understood and accepted that risk.
The Employment Standards Officer (“the Officer”) who issued the order determined that Hurndell was entitled to notice of termination, and accordingly ordered the applicant to pay termination pay of $972.40, representing the equivalent of two weeks pay. At the hearing, the applicant took the position that Hurndell had quit his employment, and was therefore not entitled to notice of termination. The responding party Ministry of Labour (“the Ministry”) took the position that the applicant had terminated Hurndell, and that the Officer had been correct in ordering termination pay.
The evidence
Hurndell was initially employed as a labourer with the applicant, commencing March 9, 1998, at the hourly rate of $8.50. When his employment ended in April 1999, he was earning $11.00 per hour, partly as a result of his satisfactory work performance, and partly due to general annual wage increases given to all employees. At the time of the cessation of his employment, he was being trained to perform a more responsible job for the applicant.
On April 12, 2000, Hurndell did not report for scheduled duty. He contacted Steven Nyarady, Jr. (“Nyarady”), the applicant’s General Manager. Nyarady testified that he asked Hurndell why he was not at work that day, to which Hurndell said he was not coming in to work because he was not getting a raise for assuming his new, more responsible duties. Nyarady explained that Hurndell had not yet acquired the necessary experience in the new job to justify a higher wage at that point. Not happy with this response, Hurndell said he wanted two weeks severance pay or he would go the “labour board”. Nyarady replied that it was his right to pursue the matter. The conversation then ended. Nyarady testified that he was quite angry at the point the conversation ended, primarily because of the threat of legal action. He said that his anger accounted for the fact that the Record of Employment (the document required by the Employment Insurance Act, S.C. 1996, c. 23 to be completed and issued upon separation of employment) issued to Hurndell in respect of the end of his employment indicated that Hurndell had been terminated by the applicant. (Hereinafter, the Record of Employment issued to Hurndell will be referred to as “the ROE”). Nyarady did not complete the ROE, nor did he see it prior to it being sent to Hurndell. Lucy Mosca (“Mosca”), the applicant’s assistant manager completed and issued the ROE. Nyarady testified that he spoke to Mosca, and told her that Hurndell was not returning to work. Mosca’s testimony, discussed below, is that no one told her to indicate on the ROE that Hurndell had been terminated.
Nyarady also testified that there had been other occasions on which Hurndell had unexpectedly not shown up for work. On those occasions, Hurndell had been told verbally by the applicant that unauthorized absence was not acceptable. No written warnings had ever been issued, primarily because the applicant viewed Hurndell as a good worker, although a sensitive one. When Hurndell became upset from time to time, he would shake visibly and remove himself from the aggravating situation. According to Nyarady, a written disciplinary notation would have been devastating to Hurndell. In any event, as Nyarady explained it, the applicant had a “soft spot” for Hurndell. Nyarady explained that on those occasions when Hurndell had failed to attend work, the applicant would phone him to inquire as to why he was not at work, and Hurndell would ultimately respond by returning to the workplace.
On the Friday (April 9, 1999) immediately preceding the day on which Hurndell’s employment terminated, Nyardy became aware that Hurndell had left work following some incident, the details of which Nyardy was not aware. There was no other evidence led concerning this matter.
Mosca, who is responsible for the applicant’s payroll and human resources functions, also testified in this matter. Her evidence was that she prepared, but did not immediately issue, Hurndell’s ROE on the morning of April 12, 1999, following the telephone conversation between Hurndell and Nyarady. She admitted that she has experience in completing the Records of Employment, and that, in fact, she has prepared amended Records of Employment in the past, when circumstances required.
Initially, while filling out the ROE, Mosca left blank the box indicating “Reason for issuing this ROE” because she was not sure what the reason was for Hurndell’s separation of employment. Eventually, she filled out the box with the letter “E”, indicating a quit. Subsequently, she wrote, in darker ink, the letter “M” over the letter “E”, thus indicating that Hurndell had been terminated by the applicant.
It was not entirely clear from Mosca’s evidence, but it appears that the letter “E”, indicating quit, was placed by Mosca on the ROE on April 13, 2000. Asked why she had indicated a quit, Mosca replied that she simply assumed that Hurndell had resigned given what she had learned about Hurndell’s threats not to come in to work absent a raise. That assumption apparently changed sometime before Hurndell instructed the applicant’s office manager, Judith Nyarady, to provide the ROE to co-worker James Askin for delivery to Hurndell. That instruction was given by telephone sometime on April 13, 2000. By this point, Mosca was under the ostensibly mistaken impression that Hurndell had been terminated. According to her evidence, she unilaterally superimposed the letter “M” over the letter “E” on the ROE. Sometime later the ROE was delivered to Mr. Askin. As indicated above, Mosca testified that no one told her to indicate termination as the reason for issuing the ROE. She referred to her action as a clerical error which she became aware of only after contact with the Ministry of Labour concerning Hurndell’s claim for termination pay. She admitted that she has never taken steps to correct the so-called clerical error, despite her experience with Records of Employment and with amended Records of Employment. She testified that in this case, she did not think there was any obligation to point out the error.
Mosca testified about a conversation she had with Hurndell on April 14, 1999, the day after the ROE was delivered to Mr. Askin. She claimed that Hurndell called her, and among other things, took the position that he wanted two weeks severance pay, otherwise he would file a complaint. Mosca replied that it was his right to file such a complaint. They also talked about the wage information on the ROE.
It was not disputed that Hurndell couriered a letter to the applicant on April 14, 1999 (which the applicant received on April 16, 1999) in which he expressed his belief that he had been dismissed without notice, and was therefore entitled to two weeks severance pay. Attached to that letter was a medical note, dated April 13, 1999, explaining that, due to a small abscess on his right leg, Hurndell would be unable to work from April 12 to April 13. The medical note appears to have been signed by a physician.
Mosca testified that the applicant was more than prepared to take Hurndell back had he come back to work and explained himself. She claimed that, had he taken concrete action indicating he wanted his job back, he could have done so as late as Friday, April 16, 1999, and the company would have responded positively, just as it had done in the past. There was no basis, she stated, for Hurndell to think that the applicant had terminated him for being absent without leave (notwithstanding receipt of the ROE indicating termination), because he had received only verbal warnings for similar behaviour in the past. It was apparent from Mosca’s testimony that she did not consider Hurndell’s letter of April 14, 1999 or the attached medical note to be sufficient action on his part to indicate that he wanted to return to work, or sufficient evidence of his belief that he had been terminated. She admitted the applicant did nothing to disabuse Hurndell of the impression expressed in his letter that his employment had been terminated by the applicant.
Decision
The evidence tendered in this matter suggests that Hurndell did not quit his employment. Much of the evidence going to this issue as tendered by the applicant was contradictory. Nyarady’s testimony suggested his belief that the ROE had initially indicated a termination, which was then changed to a quit. On the other hand, the direct evidence of Mosca, who completed the document, was that the ROE first indicated a quit, and subsequently was changed to indicate termination. Mosca’s explanation concerning her entirely unilateral action in changing the ROE to reflect termination, and her characterization of that action as a clerical mistake which she did not believe warranted correction, is simply not credible, and I give it no weight. Nyarady’s evidence concerning the content of the ROE is second-hand, and not reliable. The ROE speaks for itself. It shows that, when issued, the applicant had intended to characterize Hurndell’s separation as a termination. The applicant took no action to correct the ROE in this regard. Hurndell’s reaction to the ROE in his conversation with Mosca on April 14, 1999 is ample proof that he felt he was terminated.
Hurndell’s letter of April 14, 1999 reinforces the impression given by the ROE. Clearly, the letter expresses the belief that Hurndell had been dismissed. The medical note is an attempt at an explanation for Hurndell’s absence on April 12, 1999. It should have been viewed by the applicant as Hurndell’s defense to termination without notice. Instead, the applicant chose not to respond. If the applicant believed Hurndell had abandoned his job, one would have thought that it would have let that be known upon receipt of the letter of April 14, 1999.
The applicant took no steps to correct the ROE, a document over which it had complete control. The applicant took no steps in response to Hurndell’s letter of April 14, 1999. By its own conduct around the time of Hurdnell’s separation, it signalled clearly that it had terminated his employment. Its subsequent attempt to characterize the separation of Hurndell as a quit does not ring true.
DISPOSITION
- The Board makes the following orders and directions:
(i) that the wages paid to the "Director in trust" in relation to this matter be disbursed as follows:
to be paid to the Employer $ nil
to be paid to the Employee $ 972.40
(ii) that the administration fee
as set out in the Order to
Pay be retained by the
Government of Ontario
Consolidated Revenue Fund $ 100.00
total amount held by the $1,072.00
(iii) the application is dismissed.
“Patrick Kelly”
for the Board