0224-00-ES Mister Produce, Applicant v. Michael Hawkins and Ministry of Labour, Responding Party.

Employment Practices Branch No.: 43 001949

BEFORE: Timothy W. Sargeant, Vice-Chair.

APPEARANCES: Richard Donsky for the applicant; Michael Hawkins for the responding party; and Jeremy Warning for the Ministry of Labour.

DECISION OF THE BOARD; October 11, 2000

1This is an application under section 68 of the Employment Standards Act, R.S.O. 1990, ch.E-14 as amended, (the "Act") for a review of an Employment Standards Officer's decision, Order to Pay Number 56016.

2The issue is whether Mr. Hawkins terminated his employment or quit his employment.

3Evidence was presented on behalf of the employer by Mr. Donsky the general manager. To briefly summarize his evidence, the employee, Mr. Hawkins worked as a warehouseman on the evening shift from 10:00 p.m. to 6:00 a.m. The last day of work for Mr. Hawkins was 05/02/1999. Mr. Donsky testified that it was reported to him that for the following week Mr. Hawkins had not reported to work for three days and had not phoned in offering any reason for his absence. It was reported to Mr. Donsky that the night supervisor after trying to contact Mr. Hawkins had requested that another employee ask Mr. Hawkins to call in and explain his absence. Apparently no reason was ever offered to Mr. Donsky for the absence of Mr. Hawkins by the night supervisor. However, the night supervisor did report to Mr. Donsky that Mr. Hawkins was working for a competitor. Mr. Donsky testified that an employee on the evening shift would only be fired for the most blatant of reasons as it is very difficult to retain enough individuals on that shift. This action of not reporting in would not had led to his termination by the employer as the company needed his services on the night shift. It was Mr. Donsky's testimony, therefore, that the company had not terminated Mr. Hawkins but that he had quit. On cross-examination by counsel for the Ministry, Mr. Donsky admitted he was not Mr. Hawkin's direct supervisor, was not present on the evening shift, had no direct communications with Mr. Hawkins and only had received his information from reports given him by the night supervisor. Further, Mr. Donsky had no direct knowledge when Mr. Hawkins' employment began with the competitor.

4Mr. Hawkins testified that he had been absent for what he recalled as two shifts. He had twisted his ankle so was unable to work. He testified that he called in prior to both shifts and talked to the night supervisor directly. He said on the first occasion he told his supervisor that he could not make it in because of his twisted ankle. The supervisor had said "ok". He called in the next day and again told his supervisor he would not be in. Mr. Hawkins testified that he was then contacted by another employee and told to phone his night supervisor at work. He did and he told the supervisor "I'll be in today". He was then told by the supervisor "don't worry about it, this is not working out" and "do you want to come in and get your last pay cheque". Mr. Hawkins was also told to drop off his punch card. Mr. Hawkins testified that it was clear he had been terminated. He went in on the Saturday and picked up his pay cheque and dropped off his punch card. Mr. Hawkins testified it wasn't until May 9, 1999 after he had been terminated that he found other work at a competitor.

5The night supervisor was not called as a witness.

6In these circumstances there is no first hand evidence to contradict the testimony of Mr. Hawkins. Mr. Donsky had no direct knowledge of the events but only could testify as to reports made to him by the night supervisor. Without any testimony from the night supervisor, Mr. Hawkins' testimony must be accepted. Therefore, I find that Mr. Hawkins was terminated and entitled to statutory notice under the Act.

DISPOSITION

7I therefore confirm the Order to Pay and direct the Director of Employment Standards to pay the monies to Mr. Hawkins and the Consolidated Revenue Fund.

"Timothy W. Sargeant"

for the Board