3382-98-ES Sherry Roberts, Applicant v. Creative Hair Design and Ministry of Labour, Responding Parties.

BEFORE: Christopher J. Albertyn, Vice-Chair.

APPEARANCES: Sherry A. Roberts appearing on her own behalf; Ellen Sutherland and Leona McMahon for Creative Hair Design; Grainne McGrath for the Ministry of Labour.

DECISION OF THE BOARD; February 23, 2000

1. This is an employee application filed pursuant to the provisions of section 68 of the Employment Standards Act (“the Act”) for review of a refusal by an Employment Standards Officer to issue an Order to Pay in the applicant’s favour.

2. The issue in this case is whether Ms. Roberts resigned, or whether she was terminated. Her last day of work was Saturday, September 26, 1998. If I find Ms. Roberts was terminated she would have been entitled to 8 weeks notice of termination of her employment. Eight weeks wages amounts to $3,419.52.

3. Ms. Roberts started working for the responding employer in September 1988. She began as a shampoo girl and soon became a hair stylist. The employer is a partnership of Ms. Sutherland and Ms. McMahon. They also work as hair stylists in the shop. At the relevant time, there was another employee besides Ms. Roberts, Ms. Fields, a shampoo girl. (This is a term used by the parties). Ms. Roberts worked on a commission basis, taking 50% of the revenue she brought into the business.

4. The employer operates from a small salon in a shopping mall. The salon consists of a front area, where the hairdressing is done, and a small back room. The employers (Ms. Sutherland and Ms. McMahon) and the two employees, Ms. Roberts and Ms. Fields, worked in close proximity, and pretty much always within earshot of each other.

5. Three incidents culminated in the breakup of the relationship between Ms. Roberts and her employers, Ms. Sutherland and Ms. McMahon. Until these incidents occurred, the relationship between them was cordial and unproblematic. Ms. Roberts worked hard and Ms. Sutherland and Ms. McMahon had no complaint with her work. She had a busy clientele.

6. The first incident occurred on Thursday, September 10, 1998. Ms. Fields was assigned to cut a customer’s hair. In Ms. Roberts’ opinion, he had troublesome hair and she felt Ms. Fields was not qualified to cut it. Ms. Sutherland had assigned Ms. Fields to do the cut, and she had no doubt that Ms. Fields was capable of doing what was required of her. By that stage Ms. Fields had worked in the shop for over a year and she had regularly cut customers’ hair. She was not yet licensed, but she had completed a large part of her training and of her apprenticeship. While Ms. Fields was cutting the customer’s hair, Ms. Roberts commented that she had better be careful because the customer had difficult hair. She went on to say that in her 17 years of experience as a hairdresser his was the hardest haircut she had done. The impact of her comment was to create the impression that Ms. Fields was not sufficiently competent to do the cut. That was not true because Ms. Fields did a fine job. According to Ms. Sutherland, everyone in the shop, including the customers, felt uncomfortable. Ms. Roberts did not feel she had done anything wrong, although, in hindsight, she accepts that she may have been out of line, as she put it, in making the comments.

7. Ms. Sutherland and Ms. McMahon were troubled by Ms. Roberts’ comments in front of customers, but they thought it was an isolated matter and they took no action.

8. The second incident occurred on the next day, Friday, September 11, 1998. Ms. Roberts suddenly berated Ms. Fields for wetting the clothing of customers whose hair she was shampooing. Ms. Roberts told her to use the heavy duty cape instead of the light duty cape Ms. Fields had put on the customers. Ms. McMahon heard the commotion and went to check what was happening. She touched the sweater of one of the customers and said that it was not wet. Ms. Roberts then said that the sweater was wet, and added, apparently sarcastically, that if Ms. McMahon said it was not, then it was not.

9. Later on September 11, 1998 Ms. Sutherland and Ms. McMahon held a meeting with Ms. Roberts. She was upset about being questioned on the two incidents. She did not think she had done anything wrong, but said that she would apologize if she was out of line. Ms. Roberts says that she felt her employers were ganging up against her, in favour of the shampoo girl.

10. The third incident culminated in the relationship between Ms. Roberts and her employer coming to an end. It occurred on Thursday, September 17, 1998. A phone call was received from a regular customer for a shampoo, cut and blow dry. Ms. Roberts took the call. The customer usually had her hair done by Ms. McMahon, although it was often done by Ms. Sutherland too. Without consulting Ms. McMahon, Ms. Roberts told the customer that she could have an appointment with Ms. McMahon at 4:40 p.m. If a hairdresser is booked up the usual practice is to have the hairdresser herself speak to the customer about the appointment. If the hairdresser is willing to over-book and try to squeeze in the customer, she makes that choice herself. Another hairdresser will not take the liberty of squeezing in a customer. There is some dispute as to whether Ms. McMahon was booked up that afternoon. Ms. Roberts says there was a gap, Ms. Sutherland and Ms. McMahon say there was not. The day’s appointment schedule was shown at the hearing and it shows that Ms. McMahon was booked up. There appears to have been no gap at the time. That is because an arrow has been drawn down showing that a particular appointment was going to take a long time and cover the following slots. The arrow covered the spot in which Ms. Roberts made the new entry.

11. Ms. McMahon was furious when she noticed that the customer had been squeezed in. She said she was not going to do the appointment. She says she told Ms. Roberts to phone the customer and make a new arrangement. Ms. Sutherland confirms this. Ms. Roberts denies it. She says that Ms. McMahon was upset with the customer for using Ms. Sutherland as her hairdresser on occasion and, although she had the time to do the cut, she refused to do so. Ms. Roberts’ version of what occurred is less believable than the other. Ms. McMahon regularly cut the customer’s hair and so did Ms. Sutherland. As a co-proprietor of the business, Ms. McMahon would not have refused to attend to a customer, whose hair she regularly cut, out of a sudden pique. The explanation of Ms. Sutherland and Ms. McMahon is more probable. Ms. McMahon refused to cut the customer’s hair because the appointment had been squeezed in without her being consulted and she knew she would not be able to do it.

12. According to Ms. Sutherland and Ms. McMahon, when Ms. Roberts was told to phone the customer and reschedule her visit, Ms. Roberts refused, saying she was not going to get involved. Ms. Roberts denies this. Ms. Sutherland says that she asked Ms. Roberts who the customer had requested to cut her hair. The customer preferred to have one of the owners (Ms. McMahon or Ms. Sutherland), but she was prepared to accept anyone. Ms. Roberts denies this.

13. To summarize, according to Ms. Sutherland and Ms. McMahon, Ms. Roberts refused to phone the customer to reschedule the appointment when it was obvious that Ms. McMahon could not squeeze her in. Ms. McMahon said to Ms. Roberts that she was a co-owner of the shop and she was directing Ms. Roberts to phone the customer and reschedule the appointment. Ms. Roberts refused, saying she was not going to get involved. From her perspective there was some tension between Ms. Sutherland and Ms. McMahon over whose client the customer actually was and she did not want to get involved in that. I believe the version of Ms. Sutherland and Ms. McMahon as being the more probable. I conclude that Ms. Roberts thought there was a gap in Ms. McMahon’s schedule, but she was mistaken. I conclude that what went through Ms. Roberts’ mind at the time, when the problem was pointed out to her, was that she decided that her mistake was innocent and she was not going to take steps to correct it. If Ms. McMahon wanted to do something about it, that was up to her. As she said, she was not going to get involved. In fact, she refused to carry out an instruction given to her by her employer.

14. Not long afterwards, Ms. McMahon and Ms. Fields were having their lunch in the back room. Ms. Roberts came through and, according to Ms. McMahon, started justifying what she had done that morning. Ms. Roberts’ version is rather different. She says she went to the back room to tell Ms. McMahon that she had made the entry in the book, she had done so innocently expecting that Ms. McMahon could take the appointment, she was sorry and she was willing to phone the customer to change the appointment. This is denied by Ms. McMahon. She says Ms. Roberts was going on and on saying how she had always done entries in the appointment book and how she had just done what she always did. I believe Ms. McMahon’s version to be the more accurate. Ms. McMahon could not stand it any more and snapped at Ms. Roberts, “Sherry, shut up”. Ms. Roberts responded by saying, “I’ve had it. I can’t take it any more. I’m out of here.” She finished her customer and then stormed out of the shop. Ms. Sutherland, Ms. McMahon and Ms. Fields were not sure, but thought that she had gone for good. Ms. Roberts went out, drove around in her car, cooled down and returned shortly before her next appointment.

15. When Ms. Roberts returned to the shop, she asked to speak to Ms. Sutherland in the back room. There is a dispute as to what was said. Ms. Roberts says that she told Ms. Sutherland that she could not carry on working there if she was to be verbally abused and if the mode of communication was not going to improve. Ms. Sutherland and Ms. McMahon, who joined the meeting, say that Ms. Roberts said that she was done, she could not take it any longer and that she would leave on the following Saturday, September 26. Both Ms. Sutherland and Ms. McMahon interpreted her words as meaning that she was resigning her employment, effective from September 26.

16. Ms. Roberts denies at any stage saying that she was quitting. Her evidence is that she consistently indicated that she would leave if the communications problems between her and her employers could not be sorted out and if she was given no satisfaction as regards the verbal abuse she claims she was subjected to.

17. Each year hair stylists attended the annual hair show in North Bay. On Friday, September 18, 1998 Ms. Fields, who was responsible for arranging the tickets for the show, asked Ms. Roberts whether she would be attending. According to Ms. Sutherland (from what Ms. Fields told her), Ms. Roberts replied that she would not be going because she would “be done a week from Saturday”. Ms. Roberts says that she said to Ms. Fields she might not go to the show because she did not know if she would still be there the following Saturday, if the problems were not sorted out. On their inquiry as to what Ms. Roberts had said to her, Ms. Fields reported this conversation to Ms. Sutherland and Ms. McMahon. She said Ms. Roberts had told her she would not be going to the show because “she quit”. This reinforced Ms. Sutherland’s and Ms. McMahon’s impression that Ms. Roberts was leaving the following Saturday. Ms. Roberts overheard Ms. Fields reporting this, but she did not take any steps that day to contradict the impression created by Ms. Fields that she had resigned and would be leaving the next Saturday. Nor did she raise the matter on Saturday, September 19, which was a half working day. When asked why she did not correct what from her version was a false impression, she said that she was very busy with customers and she thought she would discuss it over the weekend with Ms. Sutherland or Ms. McMahon.

18. Ms. Sutherland claims that Ms. Roberts phoned customers as early as September 17, the day on which Ms. Sutherland alleges Ms. Roberts’ resignation was first announced, to inform them that she would be moving to a different hairdressing salon. Ms. Roberts denies this, claiming that she did that only once on Thursday, September 24, when it was clear that she was leaving. She made the bulk of her calls to her clients on the Monday after she left, September 28. I think it unlikely that Ms. Roberts made any such calls until it was clear she was leaving. That was not until about a week later, on Monday, September 20.

19. Ms. Roberts was eager to speak to either Ms. McMahon or Ms. Sutherland over the weekend following the third incident. Her explanation for her urgent desire to speak to either of them is that she felt she could not continue working in the shop with the level of tension that she felt. She says she wanted the communication with Ms. Sutherland and Ms. McMahon to improve and she wanted Ms. McMahon’s verbal abuse to be addressed. She does not give as an explanation for why she wanted to phone them that she wanted to correct the false impression which Ms. Fields had created the previous Friday, when she told Ms. Sutherland and Ms. McMahon that Ms. Roberts had said she had quit and would be leaving the following Saturday.

20. Ms. Sutherland gives a different explanation for Ms. Roberts’ urgent need to talk over the weekend. Ms. Roberts had had second thoughts about resigning and leaving her employment. She was keen to retract what she had said previously. Ms. Sutherland says that during the course of the telephone conversation she held with Ms. Roberts on Sunday, September 19, Ms. Roberts acknowledged that she had given notice of resignation, but added that she wanted to try to work out the communications problems and, if that were not possible, she would leave. A meeting was arranged for the following day, at the shop. The shop is closed to customers on a Monday.

21. Ms. Roberts, Ms. Sutherland and Ms. McMahon were present at the shop on Monday. The three incidents were discussed. Ms. Sutherland’s and Ms. McMahon’s view was that, if Ms. Roberts acknowledged that her behaviour was inappropriate and she apologized, then they would put aside what had occurred, including Ms. Roberts’ notice of resignation. Ms. Roberts adopted a similar approach to what she had previously: she did not think she had done anything wrong, but if it would help to improve communication she would apologize and accept that she might have been out of line. Then Ms. Roberts said that her issues needed to be dealt with. She wanted Ms. McMahon to start showing her respect, to acknowledge that she should not be subject to verbal abuse. At that point the discussion broke down. Ms. Sutherland said that Ms. Roberts was asking for them (Ms. Sutherland and Ms. McMahon) to admit that they were wrong and she was right. Ms. Sutherland said that they were not willing to do that. According to Ms. Sutherland and Ms. McMahon, they then said that Ms. Roberts’ quitting date, Saturday, September 26, would stand. Ms. Roberts says that they told her she was terminated and that her last day would be Saturday, September 26. Whichever version is correct, it was made clear that the employment relationship was over as of Saturday, September 26. The meeting ended. Ms. Roberts says that she told Ms. Sutherland she had better put “terminated” on her severance papers, and not “quit”. I doubt this was said because Ms. Roberts took advice on her situation from the Ministry only after the meeting, and the advice she obtained was to write a letter confirming that she had been terminated.

22. On the next day, Tuesday, September 21, Ms. Roberts sent a letter by priority post claiming that she had been terminated and demanding 8 weeks’ termination pay.

23. Ms. Roberts worked the week of September 21 to 26, then took her tools and left for good. On Sunday, September 27, she spoke to the proprietor of another hairdresser, who had offered her a position some years earlier, and he agreed that she would start work on the following Tuesday, September 29. She did so and she took most of her clients with her. Consequently she had no break in her employment.

24. Ms. Roberts filed an Employment Standards claim for her termination pay. The claim was investigated by an Employment Standards Officer who met with Ms. Roberts, Ms. Sutherland and Ms. McMahon. He concluded that Ms. Roberts had resigned and he refused to issue an Order to Pay in her favour.

25. My conclusion from the contradictory evidence as to what actually happened is that Ms. Roberts did express an intention to resign on Thursday, September 17. She gave the impression that she might be leaving on the following Saturday. But I do not accept that Ms. Sutherland and Ms. McMahon were as sure of Ms. Roberts’ intention as they now say they were. On the next day, Friday, September 18, they asked Ms. Fields what Ms. Roberts had said to her when she was asked about her attendance at the annual hairdressers’ show. They were not sure what she would say. Only when told by Ms. Fields that Ms. Roberts had said that she had quit, were they sure that she had in fact quit and that she intended to leave their employment. I conclude that until the weekend of September 19 and 20, Ms. Roberts’ intention was to convey to her employers that she intended to leave her employment. I think she had not finally decided to quit, but she was content to let them think that she was quitting in order to show them how upset she was at being told to “shut up” by Ms. McMahon. It was only during the weekend that Ms. Roberts began to doubt what she had done. Her frantic efforts to speak to Ms. McMahon and Ms. Sutherland over the weekend (she described how she was in a panic and she made several calls to try to get hold of Ms. McMahon) make sense only in the context of her realizing that she might have been taken to have resigned and she wanted to reverse that impression. When she phoned she was trying to retract the impression of the notice of resignation she had given. It is important to bear in mind that Ms. Roberts had worked happily with Ms. Sutherland and Ms. McMahon for over 10 years, and the deterioration in their relationship was very recent. In my view, Ms. Roberts realized she had overstated her position when she expressed her intentions in the heat of the moment on Thursday, September 17. I suspect she did not expect Ms. Sutherland and Ms. McMahon to act on her statement that she was leaving and, when it dawned on her that they might, she sought, over the weekend, to retract the position she had expressed. The setting of the meeting for Monday, September 21 was to try to see if the problems could be worked out.

26. At the meeting on Monday, September 21 Ms. Roberts tried to restore her employment relationship, but she was not willing to assume all the blame for its deterioration and she wanted some acknowledgement of wrongdoing on the part of Ms. McMahon. Ms. Sutherland and Ms. McMahon went to the meeting thinking that they had Ms. Roberts’ resignation, which they would be willing to overlook if Ms. Roberts clearly acknowledged her blameworthiness for the incidents which had occurred in the recent past. When that was not forthcoming, they felt they could rely upon the resignation they thought they had received.

27. Do Ms. Roberts’ communications amount to notice of resignation from her employment? On Thursday, September 17, after she was told to “shut up”, she was angry, she stormed out of the shop, expressing an intention to leave. Her intention was open to doubt. She spoke in a fit of emotion. It was not clear from what she said whether she really intended to resign or whether she just felt hurt and angry, and she wanted to get away from there. When she returned she had cooled down. She was much more composed than when she had left the store. She had had time to think. Her frame of mind was more composed; more reflective. She came back and, when she spoke to Ms. Sutherland (with Ms. McMahon in attendance), she made clear that she was resigning and that her resignation would be effective the following Saturday. The elements were present for her employer to conclude that she was quitting. Subjectively I find that she intended to resign, and she objectively conveyed that intention to her employer.

28. On the next day, Ms. Roberts’ intention to resign was confirmed in her presence by Ms. Fields communicating to Ms. Sutherland and Ms. McMahon that Ms. Roberts would not be going to the hairdressers’ show because she had quit. Ms. Roberts did nothing to contradict that impression, if resignation had not been her intention at the time. She had conveyed the previous day that she would resign and that was confirmed in her presence (with her tacit concurrence) on Friday, September 18.

29. Ms. Roberts’ explanation that she was too busy to contradict what Ms. Fields had told Ms. Sutherland and Ms. McMahon is wholly unconvincing. If she had not intended to resign and she had heard it said that she had quit, she would have taken steps to correct the false impression that Ms. Fields had created. It is not believable that Ms. Roberts would have allowed her employment relationship to end, when she had not intended that to occur, merely because she was too busy with customers. What makes her explanation more unbelievable is that, on her version, she allowed the situation to continue uncorrected during the next working day, Saturday, as well. It is simply not credible that she would have allowed that situation to prevail had she not actually intended at the time to resign, and to convey to her employer that she had resigned.

30. In Re Grimsby Packaging Ltd., [1991] O.E.S.A.D. No. 64, Decision No. 2881, File No. ESB #074867 of July 23, 1991 (Dissanayake), the referee expressed the view that for there to be a quit, two conditions must apply: (1) there must be a statement or intention to quit or an act clearly manifesting to the employer an intention to quit by the employee and (2) there must be some clear action by the employee indicating that he or she is carrying out that intention. The referee went on to suggest that an adjudicator “should not readily infer an intention to quit except where that is the inevitable and only conclusion to be drawn from the employee’s conduct.” The notion of a quit is described as follows:

[I]n Canadian Labour Arbitration, Second Edition, Brown & Beatty, at page 513, the authors quote from the case of Anchor Cap & Closure Corp. of Canada, Ltd. (1949) 1 LAC (Finkleman) as follows:

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. At pp. 4-5.

For an alleged quit to be effective, an employee must express in words or action an intention to quit and then clearly and unequivocally act upon this intention. If there is any uncertainty as to either of these elements, it is the responsibility of the employer to clear it up.

31. Ms. Roberts acknowledged over the phone on Sunday, September 20, that she had said she was leaving. She confirmed what she had clearly conveyed to the employer on the previous Thursday and, by omission, on the previous Friday and Saturday.

32. Ms. Roberts’ eagerness to contact her employers over the weekend and her entreaties on the telephone when she spoke to Ms. Sutherland look like an endeavour to retract her notice of resignation. That issue was considered in Re Westburne Centre Supply, [1992] O.E.S.A.D. No. 190, Decision No. ES 221/92; 3130 of December 10, 1992 (Randall). The referee upheld the principle that once a clear intention to terminate the employment relationship has been given, it cannot be unilaterally withdrawn. The withdrawal can occur only by consent. Hence, by the weekend, Ms. Roberts could have withdrawn her resignation only with the consent of Ms. Sutherland and Ms. McMahon.

33. Ms. Sutherland and Ms. McMahon were willing to review Ms. Roberts’ resignation. They were willing to talk to her to see if they could be satisfied that she could resume the relatively contented employment relationship they had enjoyed for over 10 years until earlier that month. That was the purpose of the meeting on Monday, September 21. When it became obvious to them that Ms. Roberts required various undertakings and conditions for her continued employment, they were not willing to agree to the withdrawal of her notice of resignation. They made that clear to her. Ms. Roberts’ notice to quit therefore remained effective. When their meeting ended, what obtained was the status quo which had existed when they entered the meeting: Ms. Roberts had resigned and her notice of resignation remained of full force and effect.

DISPOSITION

34. I find that Ms. Roberts’ employment ended on account of her resignation. I therefore affirm the decision of the Employment Standards Officer not to make an order in Ms. Roberts’ favour. Ms. Roberts’ application is dismissed.

“Christopher J. Albertyn”

for the Board