0284-99-ES Giovanni Ramirez, Applicant v. Coldmatic Refrigeration of Canada Ltd., and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 41007553
BEFORE: Brian McLean, Vice-Chair.
APPEARANCES: Consuelo Rubio and Giovanni Ramirez for the applicant; Bob Amsterdam, Brian Palmer and Alex Santoro for Coldmatic Refrigeration of Canada Ltd.; L. Eisenberg for the Ministry of Labour.
DECISION OF THE BOARD; April 4, 2000
1This is an employee review under section 67 of the Employment Standards Act (“the Act”) of a decision of an Employment Standards Officer not to issue an Order to Pay against his former employer, Coldmatic Refrigeration of Canada Ltd.
2A hearing was held in Toronto on December 8, 1999. At the hearing the parties were afforded the opportunity to lead evidence in support of their respective positions. The parties agreed that final argument would be made by way of written submissions, which have now been filed with the Board.
The Issue
3The primary issue in this application was whether the Employment Standards Officer was correct in concluding that the applicant quit his employment or whether, as the applicant asserts, the employer terminated his employment. The applicant also asserts, in the alternative, that if the Board finds that the applicant quit his employment, he only did so because of unacceptable conduct by the employer, which amounted to constructive termination of his employment.
The Facts
4Many of the facts in this application are not in dispute.
5The applicant, Giovanni Ramirez, was employed by the responding party from March 1991 to December 2, 1998 as a general labourer. He earned $11.50 an hour at all relevant times.
6On December 1, 1998 Mr. Ramirez had an argument with a fellow employee, Alex Santoro, over a minor workplace incident. The dispute took place at the end of the employees’ shift and each employee swore at each other. Mr. Ramirez and Mr. Santoro took their argument to Brian Palmer, the plant manager. Mr. Palmer was on the telephone and was upset at this aggravation, so he yelled at them to leave his office and advised them that he would deal with it in the morning.
7The next day, when Mr. Ramirez arrived at the plant, Mr. Santoro was with Mr. Palmer and the company’s owner Mr. Zafir. An argument ensued. What occurred during that argument, and its legal effect, was the source of the dispute between the parties. The applicant’s version was that he told Mr. Palmer that he and Alex had cross words and that Mr. Palmer started to get very excited. Mr. Palmer told Mr. Ramirez and Mr. Santoro that he was tired of dealing with them. Mr. Ramirez testified that Mr. Palmer then said “I could send you home for a week”. Mr. Zafir told Mr. Palmer “whatever you do is fine with me”. Mr. Palmer then said “I can do your job. Go home”. Mr. Ramirez and Mr. Santoro both left. As Mr. Ramirez was leaving, he testified that he said: “Are you firing me, you have no reason?” and got no answer, and accordingly, he understood that his employment was terminated. He was only 5 to 6 meters away from Mr. Palmer when he asked him if he had been fired.
8The responding party’s version of events at the meeting was quite different than that advanced by the applicant. Mr. Palmer testified that when he went to work on the morning in question, Mr. Santoro, Mr. Zafir and the applicant were already arguing heatedly. Mr. Palmer told Mr. Zafir that he should “Just send these guys home for a week”. Mr. Zafir said “Do what you want”. Mr. Palmer then shouted “I have had enough. Go home for the day”. Mr. Palmer testified that he did not hear the applicant say “Are you firing me?” as the applicant left his office.
9I heard substantial evidence about the working conditions at the plant including that it was stressful, that employees swore a lot, that it was not peaceful and that the atmosphere was “hostile and poisoned”. None of this evidence was in any way relevant to my determinations. However unhappy Mr. Ramirez was with his job, it is not alleged that great unhappiness with his workplace was the reason for his actions on the days in question.
10After Mr. Ramirez left, Mr. Palmer prepared a discipline letter for him, giving him a one day suspension. Mr. Ramirez’s counsel suggests that the timing of the letter is crucial as the letter was only given to Mr. Santoro, the day after the incident and the letter was never given to Mr. Ramirez. However, there was no dispute that the letter was written before Mr. Palmer became aware that Mr. Ramirez took the position that he was quitting. The reason the letter was never given to Mr. Ramirez is that he did not come back to work.
11Mr. Ramirez called the company accountant to ask for his Record of Employment and final pay cheque. Mr. Ramirez advised the accountant, whom he knew, that he had been fired. The accountant was surprised by Mr. Ramirez’s request because no one had advised him that the applicant’s employment had been terminated. The accountant went to Mr. Palmer to inquire, and Mr. Palmer was also surprised by Mr. Ramirez’s request.
12Mr. Palmer tried on several occasions to telephone Mr. Ramirez at home in order to advise him that he was mistaken and that he should return to work the next day. However, Mr. Ramirez, who has a call display feature on his telephone, refused to take Mr. Palmer’s calls. He testified that he was angry at Mr. Palmer and he also believed that Mr. Palmer was going to ask him to return to work. Because Mr. Ramirez could not be reached by telephone, the company faxed him a letter that day advising him that he was not fired and to return to work.
13On December 3, 1998 Mr. Ramirez went to the Ministry of Labour to claim termination pay (which, having regard to section 7(4) of the Act, would not have been owing at that time even if the applicant’s employment had been terminated). The Ministry provided Mr. Ramirez with a letter to send to the employer claiming termination pay. In that letter, the applicant wrote, among other things, “Please note that I didn’t quit my position with the company”. He completed the form letter by saying that he could be contacted at his home between the hours of “18-21 hours”.
14The company kept attempting to contact the applicant by telephone. On one occasion when Mr. Palmer telephoned, Mr. Ramirez’s daughter answered, apparently because Mr. Ramirez was not at home. The applicant alleges that Mr. Palmer spoke abusively to his daughter, an allegation which Mr. Palmer denies. The applicant’s daughter was not called as a witness.
15Eventually, Mr. Palmer contacted Mr. Ramirez and a heated argument ensued regarding Mr. Palmer’s dealing with the applicant’s daughter. Mr. Palmer asked Mr. Ramirez to forget about the dispute that had occurred at work and to return to work. Mr. Ramirez objected to Mr. Palmer’s treatment of his daughter and refused to return to work. Mr. Ramirez advised Mr. Palmer that he had already contacted the Centre for Spanish Speaking People to assist him in dealing with the company.
16Subsequently, the company’s owner, Mr. Zafir, also telephoned Mr. Ramirez. He also urged him to change his mind, but by this time, the applicant’s position had hardened and he was unwilling to return to work.
17Following the termination of his employment, Mr. Ramirez almost immediately found part-time work at a banquet hall working for a friend. While Mr. Ramirez may have known that such work was available on December 2, 1998, I am satisfied that Mr. Ramirez did not quit his work at Coldmatic to work at the banquet hall. Mr. Ramirez was buying a house at the time and, it is absurd to suggest that he quit his full-time position for the purpose of accepting a part-time position at a lower hourly rate.
18I also heard evidence about an occasion, in 1996 or 1997, when Mr. Ramirez quit his employment at Coldmatic. Mr. Ramirez got in a dispute with Mr. Palmer and told him that he “was leaving”. Mr. Palmer said “if you are leaving don’t come back”. Mr. Ramirez left. However, on that occasion, Mr. Zafir, the company’s owner, managed to talk Mr. Ramirez into returning to work.
Decision
19The main issue in this application is whether on December 2, 1998, the employer terminated the applicant’s employment.
20The applicant asserts that at the conclusion of the argument between himself and Mr. Palmer on December 2, 1998 he asked Mr. Palmer: “Are you firing me?” and he got no response. The applicant asserts that the effect of the employer’s failure to answer his question is that his employment was terminated.
21The employer and the Ministry argue that the company’s representatives did not hear the applicant’s question and taken as a whole, the evidence points to the fact that the applicant quit his employment.
22It was undisputed that at no time did management take any positive step to terminate the applicant’s employment. No company representative ever said to the applicant “You are fired” or words to that effect. The company did not prepare a letter of termination or Record of Employment, and the company did not ask the applicant to clean out his locker. In fact, the company took the opposite action. It prepared a letter of suspension, not of termination, and it suspended the other participant in the fracus for only one day. Moreover, the incident which occurred was not the sort of misconduct that would likely lead to an employee’s discharge.
23The company’s management’s state of mind can be discerned from its behaviour at the meeting on December 2 and thereafter. It is undisputed that Mr. Palmer initially said “I should send you home for a week” and then Mr. Zafir said something to the effect of “Do what you want to do”. At that point Mr. Palmer told Mr. Ramirez to go home. The context of the discussion was about suspension, not termination. The company was also undeniably surprised that Mr. Ramirez took the position that he had him terminated. Under these circumstances, I am satisfied that the company never intended to, and did not, terminate Mr. Ramirez’s employment.
24In addition, Mr. Ramirez admitted in cross-examination that he was upset that Mr. Palmer swore at him and said he could do his job. I have no doubt that Mr. Ramirez wanted his employment to be at an end because he was upset with Mr. Parker’s conduct towards him.
25Even assuming that the applicant asked Mr. Palmer “Are you firing me?” and got no response, I am satisfied that Mr. Palmer did not hear the applicant. Even if Mr. Parker did hear Mr. Ramirez’s statement, I believe it is more likely that management took the statement to be something said in the heat of the moment and not as a question that had to be responded to. In fact, in my view, based on the applicant’s conduct following the incident, the applicant himself did not believe that he was fired. The Company took no step to terminate Mr. Ramirez’s employment. In fact, it did everything to demonstrate the opposite, that the company wanted the applicant to return to work. In any event, the company’s failure to answer Mr. Ramirez, did not have the legal effect that the applicant seeks.
26In my view, this is not a case where the company changed its mind about terminating the claimant’s employment. The company’s intention all along was to suspend Mr. Ramirez and that is what it did. Therefore, the case law provided to me on this point is of no assistance. The Employment Standards decision number ESC 116 is arguably relevant, however. In that case several employees complained about working conditions and were told by their foreman “if you don’t like it, go and punch your time card or go and get your time and go home”. All of the employees understood they had been fired. Later the employer phoned the employees and asked them to return to work. The referee found in favour of the employees. The referee was satisfied that the employer intended to terminate the employee’s employment. In this case, however, I am of a different view. I am satisfied that the company intended only to suspend Mr. Ramirez.
27I am also not persuaded by the applicant’s alternative argument. I do not accept that the circumstances before me amounted to a constructive dismissal. If the applicant wished to rely on Mr. Palmer’s conversation with his daughter, he should have called his daughter to testify. The only evidence I have of the conversation is from Mr. Palmer and that evidence does not support the claimant’s argument. In any event, it is apparent that the discussion with the applicant’s daughter occurred after the applicant quit his employment. Therefore, he could not have been constructively dismissed since he was no longer employed.
Disposition
28I am satisfied that the applicant quit his employment and was not constructively dismissed. Accordingly, the decision of the Employment Standards Officer is upheld and this application is dismissed.
“Brian McLean”
for the Board