849057 Ontario Ltd. o/a Roy’s Enterprise v. Munroe, 2000 CanLII 11817

849057 Ontario Ltd. o/a Roy’s Enterprise v. Munroe

1292-99-ES 849057 Ontario Ltd. o/a Roy’s Enterprise, Applicant v. Phyllis Munroe, and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 33 000988

BEFORE: David A. McKee, Vice‑Chair.

APPEARANCES: Connie Roy for the applicant; Dean Lindsay and Phyllis Munroe for the responding party employee; L. Eisenberg for the Ministry of Labour.

DECISION OF THE BOARD; May 10, 2000

Introduction

1. This is an application under section 68 of the Employment Standards Act, R.S.O. 1990, ch. E-14 (“the Act”) for a review of an Order to Pay issued on June 25, 1999 against the applicant 849057 Ontario Ltd. o/a Roy’s Enterprise (“Roy’s”). An Employment Standards Officer found that Roy’s had terminated the employment of the responding party Phyllis Munroe (“Munroe”) and had not paid her termination pay. The Officer therefore ordered Roy’s to pay Munroe the equivalent of eight weeks’ pay in lieu of notice.

2. Roy’s takes the position that the proper characterization of events leading up to the cessation of Ms. Munroe’s employment was that she had “abandoned her job”. That is, she quit her employment and therefore Roy’s did not terminate her at all. Alternatively, Roy’s is not required to pay termination pay because Ms. Munroe’s conduct fall within section 57(10)(c) of the Act which provides:

57.(10) Subsections (1) and (2) do not apply to,

(c) an employee who has been guilty of wilful misconduct or disobedience or wilful neglect of duty that has not been condoned by the employer …

Roy’s did not allege that it had terminated Ms. Munroe for any other cause.

Facts

3. The facts are as follows. Roy’s is a small clothing producer which adds identifying and decorative elements to manufactured clothing by either embroidery, silk-screening, or both. It is run by Mr. and Mrs. Roy (the Board heard evidence only from Mrs. Connie Roy) and employs eight persons, including three persons engaged in embroidery and two in silk-screening. Prior to May of 1998, Ms. Munroe had been employed as an embroiderer for over ten years. Following certain events in May of 1998, she was assigned to silk-screening. Ms. Munroe did not contend that Roy’s was prevented from changing this assignment of duties, or that this change amounted to constructive dismissal. It did, however, have serious consequences.

4. On the May long weekend in 1998, Ms. Munroe asked for the weekend off. She had plans to travel to visit her brother in the Maritimes. Because of a backlog of orders, Mrs. Roy refused. Ms. Munroe reported the next day that she was ill and unable to work until May 24. She ultimately provided a brief doctor’s note to this effect. On her return she was transferred from her embroidery job to silk-screen work. This caused her to suffer increasing levels of pain while she was working. On June 17 she attended at her doctor’s office. Her doctor advised her to work at the silk-screening for no more than two hours per day and provided Ms. Munroe with a brief report to this effect.

5. On June 18 Ms. Munroe attended at work and advised Mr. Roy of this restriction. He instructed her to continue to work on silk-screening. After two and a half hours, she again approached Mr. Roy. He told her that the only work available for her was silk-screening and if she could not do that work, to go home. She did. Roy’s attempted in hindsight to place some weight on the fact that she took “all of her personal possessions” with her. These possessions consisted only of a lunchbag and a broom she had used in the course of her work which was no longer needed following the purchase on June 11 of a vacuum system. I do not find the removal of the broom to be of any significance.

6. The next day Ms. Munroe filed a claim under the Workplace Safety & Insurance Act (“WSIA”). Roy’s was aware of this, but nothing seems to turn on that fact. Roy’s heard nothing for a while and then took the appropriate precaution of sending Ms. Munroe a letter dated June 29, 1998 which states:

“This letter is to inform you that we will assume you have chosen to resign your possession at Roy’s Enterprise if we are not notified as to the reason for your absence from your position here by Thursday, June 2, 1998”.

Ms. Munroe responded by sending Roy’s the report her doctor had provided her on June 17. This report states:

“Required modified work. No large silk-screens for more than two hours per day – indefinitely. Diagnosis: over-use syndrome/tendonitis, upper limbs”.

This apparently satisfied Roy’s.

7. Over the summer, Mrs. Roy instructed a supervisory employee, Kim Eveleigh to tell Ms. Munroe’s residence. She testified she did so on three occasions, before and after the plant shut down at the end of July and beginning of August, and later in September. Once she left a message with a person who appeared to be Ms. Munroe’s son, and twice she left a message on an answering machine. Since neither of Ms. Munroe’s sons testified, and because answering machines may be answered carelessly by others, I must conclude that the calls were made. However, the informal nature of the contact reflects the employer’s lack of any pressing concern about Ms. Munroe’s return to work. I find that Roy’s simply assumed she was unable to work and it was content not to bring the issue of her continued employment to a head. That is, Roy’s was content that Ms. Munroe not be at work and had no interest in ascertaining whether she had any plans to return to work.

8. On September 21 Roy’s received a report from the Workplace Safety and Insurance Board (“WSIB”) indicating that her disability claim had been disallowed. It is, of course, not conclusive of her physical condition. An employee may be physically unable to perform certain work. However, unless the disability arises from and in the course of employment, it is not compensible under the WSIA. Indeed, the decision of the WSIB states:

“The medical advisor reviewed all documentation on file, and based on the clinical findings and your job duties, recommended that your bilateral arm problems are not related to the job that you performed”.

9. That is, Ms. Munroe’s disability was not any the less real. Again, this letter appears to have caused no action on the part of Roy’s. Clearly, Roy’s was aware of the application since Mrs. Roy did attend the appeal of the adjudicator’s decision at a later date. This date was not given in evidence.

10. Mrs. Roy was asked by counsel for the Ministry why during July, August and September she did not send a letter to Ms. Munroe asking for clarification of her status. Mrs. Roy’s response was “I trusted she would call us”. Roy’s was apparently prepared to let the matter rest indefinitely. Specifically, Mrs. Roy agreed on cross-examination that during those months she did not consider Ms. Munroe to have quit.

11. At some point in October 1998, Mrs. Roy received a request for a Record of Employment. Ms. Munroe called and left a message with another employee requesting that Roy’s issue one. Mrs. Roy did call back and asked why she needed the Record of Employment. Ms. Munroe stated she needed it to apply for Employment Insurance and made some reference to upcoming surgery or hospitalization. As a result of this call on October 14 Ms. Munroe faxed to Mrs. Roy a “pre-operative patient information” form indicating she was to report to the Whitby General Hospital on October 22, 1998.

12. Mrs. Roy was concerned about what she perceived to be a contradiction between pursuing a WSIA appeal and an Employment Insurance claim. Mrs. Roy was told by a claims adjudicator at the WSIB on October 14, 1998 that WSIB had considered her able to return to work on August 27, 1998. This evidence is based on a memo in WSIB’s file as to this conversation. It is not clear to me how that advice relates to the September 21 decision quoted above.

13. In any event, Mrs. Roy then telephoned her local Employment Insurance office. She inquired as to how she was to issue the record of employment in these circumstances. Mrs. Roy believes that the officer she spoke to offered the opinion that the facts as she related them sounded like “job abandonment”. He advised her to fill out the record of employment with the reason for the severance of employment as “Other”. On this basis, Employment Insurance agents would call Mrs. Roy later for details.

14. It is unfortunate that Mrs. Roy elected to focus on the phrase “job abandonment”. Whether this was an off-the-cuff remark or a serious opinion, Mrs. Roy placed far too much emphasis on it. This Board has no evidentiary basis for determining which it was. It is entirely likely that the officer involved would be surprised if he were informed that Mrs. Roy took his comments as legal advice about her obligations under the Employment Standards Act. Even if it was intended as such , it is not reasonable for an employer to conclude that this was appropriate legal advice with respect to its obligations under the Employment Standards Act on which it was entitled to act. I find that Mrs. Roy seized on this phrase as a solution to a problem with an employee. She did not particularly wish the employee to return to work, but did not wish to confront her as to her medical status or their intentions. She believed that she had found the solution to effecting the termination of Ms. Munroe’s employment, without actually having to sever the employment relationship. Having seized on a method by which she could treat Mrs. Munroe as being gone from employment with no action (and therefore no liability) on the employer’s part, she was not prepared to entertain any other possibility.

15. Ms. Munroe’s subsequent actions were not consistent with any intention to abandon her job. Her evidence was that she intended to return to work when she was able to do so or when modified duties were available to her. However, she too was avoiding a potentially confrontational issue. At no time between June 18 and October 14 did she contact her employer. She did not demand a right to modified work. She did nothing to ensure that her employer was apprised of her state of health. Clearly, she did not wish to return to work as a silk-screen operator. She had no legal right to claim the embroidery work in general terms. A close examination of the available work in a small shop might well reveal that no modified duties were available. I conclude that Ms. Munroe was just as unwilling to bring the issue to a head as was her employer. She too was content to let the matter drift rather than provoke an event which might require her status to be resolved once and for all.

16. As noted, Ms. Munroe’s response to her conversation with Mrs. Roy was to send her the note indicating she had surgery scheduled. This is consistent with her evidence that she spoke to Mrs. Roy and advised that she needed a Record of Employment for the purposes of Employment Insurance connected to surgery. It is not consistent with a person who has decided to quit her job.

17. On November 13 she sent a brief doctor’s note to Roy’s indicating:

“Ms. Munroe’s medical condition is sufficiently debilitating to warrant a change of jobs which are considered “light duties”, her expected return to work date is November 30, 1998. This was received by Roy’s on November 17”.

18. On November 27 Ms. Munroe called Mrs. Roy. Mrs. Roy’s evidence was that she had no recollection of the conversation. Ms. Munroe did and her version of the conversation is confirmed in a letter she sent to Roy’s dated November 30, 1998, to which no contradictory response was sent. I therefore accept her evidence as to the contents of the conversation. She called and asked if there was any modified work available for her. Mrs. Roy replied that she had abandoned her job and that there was no work available to her. Ms. Munroe then wrote two letters to Roy’s denying that she had abandoned her job. The first is the November 30 letter mentioned above which is not little more than a recitation of events. On December 16 she wrote specifically stating:

“I am also requesting a response if light duties are available to me and if your records have been corrected that I have not abandoned my job and I’m still covered by a legitimate medical condition”.

Roy’s response was to send a letter to Ms. Munroe stating:

“According to the Workplace Safety and Insurance Board you were given permission by your Doctor to return to work on August 27, 1998 on limited duties and you did not contact us until November 17, 1998. This action is classified as job abandonment”.

Decision

19. Ms. Munroe did not quit her employment. The act of resignation, or quitting, is an act solely within the employee’s control. It requires a conscious decision and action on the part of the employee. It is not possible for a third party, be it an employer or this Board, to “deem” her to have quit when she did not make that decision herself.

20. It is trite law that a decision to quit requires two elements. First, the employee must make a decision to quit (the “subjective element”). Second, the employee must take some active step to sever the employment relationship (the “objective element”). Arbitrators dealing with similar allegations in discharge grievances filed under a collective agreement are virtually unanimous on this point. As stated in Canada Packers Inc., (1984) 1984 CanLII 5274 (ON LA), 17 LAC (3d) 1 (Rayner) at p. 5:

There is considerable arbitral jurisprudence that focuses on the question of whether an employee resigned or was fired.

Perhaps the seminal case in this line of jurisprudence is Re Anchor Cap & Closure Corp. of Canada, Ltd. and U.E.W. Local 512 (1949), 1 L.A.C. 222 (Finkelman). At p. 223 the arbitrator stated:

“The act of quitting a job has in it a subjective as well as an objective element. An employee who wishes to leave the employ of the Company must first resolve to do so and he must then do something to carry his resolution into effect. That something may consist of notice, as specifically provided for in the Collective Agreement or it may consist of conduct, such as taking another job, inconsistent with his remaining in the employ of the Company.”

The cases flowing from this initial characterization are legion and many have been reviewed in Re Metropolitan Toronto Board of Com’rs of Police and Metropolitan Toronto Police Assoc. (1978), 1978 CanLII 3406 (ON LA), 18 L.A.C. (2d) 7 (Adams). At p. 13 the arbitrator stated:

“The first category of cases establishes the principle that while an employee may voluntarily quit his employment, he must form the subjective intent to do so. While an employer may infer that he has quit from his conduct, it cannot “deem” that he has quit, over his objections. The second category of cases establishes that there need to be confirming objective conduct and that this conduct must be of a continuing nature”.

This analysis has been adopted in at least two decisions under this Act: Re Grimsby Packaging Ltd. [1991] OSEAD 64, Decision 2881 (Dissanayake) and Creative Hair Design (Board File 3382-98-ES, Feb. 23, 2000, Albertyn).

21. The more serious issue is whether Ms. Munroe was “guilty of wilful neglect of duty that has not been condoned by the employer”. In order to come within section 57(10)(c), the employer must demonstrate not only that the employee has been absent for excessive periods of time but that this action has been “wilful” in the sense of:

(a) a deliberate act;

(b) taken without a valid reason; and

(c) done in a context where the employee knows (generally because the employer has warned her) that her job is in jeopardy if the absences continue;

22. In Sumner Printing and Publishing Co. Ltd. (May 8, 1996, R.E. Brown, ESC 2113), the Adjudicator stated:

An employer is not relieved of the responsibility to give notice under the act merely because the employee has been guilty of continued and even prolonged absences from work. It is not the number of absences but the reason for those absences that is critical in determining whether the exception set out in subsection (3)(c) shall operate to excuse the employer from giving notice. Thus a deliberate refusal by an employee to obey an employer’s instruction to show up for work on one occasion may trigger that exception to the notice provision while a continuous absence from the shop due to a legitimate excuse will not. Thus, in defining the term “wilful misconduct” in Argo Cleaners (Windsor) Inc., July 10, 1985, at pp. 10-11, I had occasion to say:

Wilful misconduct for the purposes of the statutes requires some deliberate or intentional act on the part of an employee. It is not enough to show that the employee failed to perform the duties he was required to perform or performed them incompetently if it is not also shown that his acts or omissions were the product of deliberation and design on his part. Thus acts which are done carelessly, thoughtlessly, heedlessly or inadvertently are not acts of wilful misconduct even if they are done repetitively and may have been the basis for summary dismissal at common law.

And in defining the nature of wilfullnes in the context of both “misconduct” and “neglect of duty” in The Aylmer Express Ltd., October 31, 1985, at p.8, I said:

The “misconduct” or “neglect of duty” referred to in the Act is preceded by the term “wilful”. Therefore, it is not sufficient merely to show that an employee was indifferent, casual, thoughtless or neglectful in the performance of, or in the omission to perform, his or her duties or responsibilities. These acts or omissions must be the product of some deliberate or intentional act. The employee must consciously and deliberately engage in some positive act of misconduct or deliberately refrain from performing duties or responsibilities that he or she was required to perform.

Similarly, in Charles Caldwell doing business as Canadian Tire (May 6, 1986, ESC 2197, M. R. Gorsky), the Adjudicator stated:

It is necessary to first establish (the onus being on the Applicant) that the conduct of the Claimant can be categorized as being “wilful”. In Re Pentagon Mold & Tool Co. Ltd., April 11, 1974 (Magerman), E.S.C. 97, it was stated:

“A person cannot be said to be guilty of willful misconduct or willful neglect of duty unless he is conscious of doing the act which is complained of or in omitting to do the act which is said to have been done knowing he was committing a breach of his duty and also recklessly careless, whether it is a breach of duty or not.

In Re Twin City Disposal Services, June 1, 1977 (Picher), E.S.C. 429, it is stated:

“Used in the legal context the word ‘guilty’, ‘willful’, and ‘disobedience’ connote actions that are deliberate, intentional or so reckless as to be, in effect, intentional.” (emphasis supplied)

Inadvertent or unintentional acts or omissions of an employee are not within s.40(3)(c) [now s. 57(10)(c)] and do not relieve the employer of its duties under s.40(1) or (7) of the Act. [now s. 57(1) and (7)]…

23. Absences caused by a medical condition do not constitute wilful neglect of duties. In Dofasco Inc. (June 15, 1993, ESC 93-125, D.A. Muir), the Adjudicator put it this way:

… It is not wilful misconduct when as a consequence of a medical condition an employee is absent from work more often than would otherwise be acceptable. In this regard, notwithstanding the detailed evidence tendered regarding the Employer’s program of progressive discipline, innocent absenteeism is rarely wilful misconduct. Similarly, a system of progressive discipline does not transform innocent behaviour into wilfull misconduct.

24. Finally, in cases of absence (as opposed to other types of misconduct), there is an obligation on an employer to warn the employee that the consequences of a continued absence include termination of employment. In Zaharopoulos (June 14, 1985, ESC 1933, D. Fraser), the Adjudicator stated:

I find that these matters constitute wilful neglect of duty under all the circumstances noted above. However, Referee Bigelow has noted in respect of wilful misconduct that “The employer must have explained to the employee after each occurrence that his conduct was not acceptable and if continued would result in termination”.

I accept this criteria as a reasonable one in terms of the wilful neglect of duty I have found, in that it is reasonable that one should be warned of the consequences of one’s behaviour in the clearest terms, if continuation of that behaviour will result in termination. Ms. Brennan was not given any clear warning whatsoever. She was frequently given “looks”, and she was re-instructed many times, but she was never told that her job was in jeopardy, nor that she might be subject to any discipline at all. Failure to meet Referee Bigelow’s criteria of a warning or explanation may be viewed objectively on large part as a condonation by the employer, which is found as an exception to the misconduct or neglect contained in s.40(3)(c) [now s. 57(10)(c) ].

In the result I find that although Ms. Brennan has been guilty of wilful neglect of duty, the failure to warn her of the consequences of her neglect amounts to a constructive condonation of her conduct, and the employer is not therefore exempted from the general application of s.40(3)(c) [now s. 57(10)(c)].

25. On the facts of this case, Ms. Munroe has not been guilty of wilful neglect of duties not condoned by her employer. On the basis of the evidence before me, I can only conclude that her absences were caused by a medical condition which prevented her from performing the silk-screening work, the only work assigned to her. Her final period of absence was necessitated by unrelated surgery. Therefore, her behaviour cannot be characterized as wilful neglect.

26. The length of absence without any substantial communication with her employer is troubling. However, Roy’s was prepared to accept the situation as it stood. At no time did it demand an explanation from or require a return to work from Ms. Munroe. Roy’s did not warn her that her employment was in jeopardy. Therefore, even if her actions could be characterized as wilful neglect of duty, this has been condoned by the employer.

27. Therefore, Roy’s cannot bring itself within the exception of section 58(6)(c). I find that Roy’s terminated Ms. Munroe for reasons not contained in section 58(6) and is therefore obliged to pay her termination pay in accordance with section 58(1).

28. I do not mean to suggest that Ms. Munroe’s actions are not open to criticism. She should have initiated contact with her employer more frequently than she did. Her request for modified duties should probably have been made much earlier than November 13. No employer needs to tolerate the lack of information or contact from an employee. On the other hand, Roy’s was more than prepared to tolerate it. A few telephone calls (which are, of course, subject to miscommunication) are hardly an adequate response. At any time it was open to Roy’s to advise Ms. Munroe exactly as it did on June 29 that “We will assume you have chosen to resign your position at Roy’s Enterprise if we are not notified as to the reason for your absence from your position by …”. It was satisfied with the brief note provided in response to the June 29 letter. It could have asked for more. It could have demanded more and better medical information. It would probably have necessitated an honest look at what modified work there may have been available in the shop. However, in the absence of any activity on Roy’s part, the relationship was left to drift virtually indefinitely. One party has to terminate the relationship. The employee may do so by quitting. The employer may terminate for cause. However, the employer may not “deem” an employee to have quit. It must address the issue squarely and honestly and determine if it has cause to terminate the employment relationship. If not, it must either continue to tolerate an absent employee or terminate that person and pay termination pay. In this case, it attempted to do neither. Since Roy’s was clearly not prepared to permit Ms. Munroe to return to work, it terminated her employment, and did so in circumstances under which it was obliged to pay termination pay.

Disposition

29. I therefore confirm the Order to Pay and direct the Director of Employment Standards to pay the monies to Ms. Munroe and to the Consolidated Revenue Fund.

“David A. McKee”

for the Board