1144-99-ES Belair Recreational Products Inc., Applicant v. Robert Hussey, and Ministry of Labour, Responding Party.
BEFORE: Brian McLean, Vice-Chair.
APPEARANCES: Bryan Belair for the applicant; Robert Hussey on his own behalf; Karen Northey for the Ministry of Labour.
DECISION OF THE BOARD; March 22, 2000
1This is an employer review under section 68 of the Employment Standards Act (“the Act”) of an Order to Pay issued by an Employment Standards Officer.
2The Order to Pay was for termination pay. The employer appeals the Order on the basis that the employee was not fired but quit. A hearing was held on March 14, 2000 to consider the employer’s appeal. The issue on appeal was whether the claimant, Mr. Hussey, quit or was fired.
3Mr. Belair, the owner of the employer, testified that Mr. Hussey, the claimant, and he had a discussion in which Mr. Hussey got upset about workplace morale, safety issues and the amount of money he was being paid. Mr. Belair told Mr. Hussey to go home and to come up with some ideas to improve the situation. The next week, Mr. Belair and Mr. Hussey met and Mr. Hussey told Mr. Belair that he had left a list of demands on Mr. Belair’s desk and that if those demands were not met, Mr. Hussey would quit. Mr. Belair then said: “If that is the case, then you are quitting”. Another employee, Jamie, who was also involved in preparing the demands, came over and Mr. Hussey asked him “Do you agree with Bob”? Jamie said that he did and Mr. Belair told him to leave also. Shortly after, Mr. Hussey said “I’m giving you two weeks’ notice” and Mr. Belair said “No, you are done now”. A week or so later, Jamie, who did not appear at the hearing, apologized and got his job back.
4Mr. Hussey’s story was quite different from Mr. Belair’s. He said that he and Mr. Belair met on a Sunday and that they had an argument about working conditions. Mr. Belair told him to put any ideas he had in writing and that they would meet about them on Tuesday. On Tuesday, Mr. Hussey left the demands on Mr. Belair’s desk and later Mr. Hussey saw Mr. Belair and asked about the meeting. Mr. Belair said he had to go to Toronto, so he could not meet. Then Mr. Hussey got angry and said “You want to quit”. Mr. Hussey said no. Mr. Belair said “You get the fuck off the property now”. Then Jamie came over and said “I don’t think I’m getting a fair shake”, and Mr. Belair said “You are quitting too”. Later Mr. Hussey said “If I was going to quit, I would give you two weeks' notice”. He denied that he ever said he was quitting.
5The Board is faced with two conflicting versions of the events in question. I have doubts about the absolute accuracy of each of the stories that were told to me. However, it is not necessary for me to determine exactly what happened because even if Mr. Belair is completely accurate in his recollections, the Order to Pay must be confirmed.
6The employer’s best case is that Mr. Hussey advised Mr. Belair that if his demands were not met, he would quit. Had Mr. Belair advised Mr. Hussey that the demands were not acceptable and then Mr. Hussey quit, then the termination pay would not be owing. However, that is not what Mr. Belair did. Instead, Mr. Belair told Mr. Hussey that he was quitting and ordered him to leave. Mr. Belair is the one who caused Mr. Hussey’s employment to be at an end since Mr. Hussey never actually said that he quit, only that he intended to quit. Under these circumstances, the employer terminated Mr. Hussey’s employment. Accordingly, the employer’s appeal is dismissed.
Disposition
7The Order to Pay is confirmed and shall be paid as follows:
Robert Hussey $1,189.76
The Government of Ontario Consolidated Revenue Fund $ 118.98
“Brian McLean”
for the Board