0090-00-ES Ruth Brown, Applicant v. Canadian Tire Corp., and Ministry of Labour Responding Parties.
Employment Practices Branch File No. 30 013715
BEFORE: Brian McLean, Vice-Chair.
APPEARANCES: Ruth Brown appearing on her own behalf; Brenda Philip (Niven) for Canadian Tire; Brian Fukuzawa and Mircho Mirchev for the Ministry of Labour.
DECISION OF THE BOARD; October 11, 2000
1This is an employee appeal of a decision by an Employment Standards Officer not to issue an Order to Pay against the employer.
2A hearing was held to consider the evidence and representation of the parties on September 8, 2000.
3At the hearing, the applicant, Ms. Brown, testified on her own behalf while Ms. Niven testified on behalf of the employer.
4The applicant claims termination pay and vacation pay thereon. Her claim arises out of an incident in which her employment came to an end. The only issue is whether the applicant’s employment was terminated by the employer or whether she quit her employment.
5Many of the background facts were in dispute. However, the facts upon which I must base my decision are essentially agreed.
6The applicant was employed by the responding party as a sales clerk. She was employed for at least eight years. There is no dispute that if she is found to be entitled to termination pay, she would be owed eight weeks’ pay.
7In October 1999 the applicant became involved in a dispute with her supervisor. The dispute was over a silly issue; however, it degenerated to name calling and swearing. Since the responding party did not call evidence in response to the applicant’s testimony, I am left with only one side of the story and must make my findings of fact accordingly. I find that the applicant swore at her supervisor and that the supervisor threatened to generate a customer complaint regarding the applicant. The supervisor also swore at the applicant.
8Regardless of what happened between the applicant and the supervisor, the company’s reaction to these events are not in dispute. The store manager, Mr. Millard, called the supervisor into his office and asked her to apologize. She indicated that she would. The applicant was unaware of these discussions. Mr. Millard then called the applicant into his office and ordered her to apologize. The supervisor was not present. The applicant refused to apologize. The store manager, after further discussion, advised the applicant, in the words of Ms. Niven, that she “must either apologize or lose her job”. The employer prepared a letter to be given to the applicant which stated: “It is requested that in order to maintain your present employment an apology be conveyed by you to [the supervisor]”.
9The applicant advised the store manager that she was not apologizing and she left the meeting and the store. Ms. Niven went after the applicant and tried to convince her to change her mind but she refused to apologize.
10The applicant never returned to work. The company made no effort to contact the applicant to determine why she was not returning to work. They provided her with a Record of Employment which stated that she quit.
Decision
11Since the employer did not argue that the applicant’s employment was terminated for wilful misconduct, there is one issue: was the applicant’s employment terminated by the company or did she quit her employment.
12In my view the answer is clear. The employer presented to the applicant two options: she could apologize or she would be fired. The employer cannot now say, as it did at the hearing, that they never did anything to fire the applicant. The employer gave her a choice and she took it.
The fact that the applicant chose to be fired when given the choice does not, in the circumstances, mean that she quit her employment. The employer’s conduct amounts to a termination of employment.
13I therefore allow the application.
DISPOSITION
14For all of the foregoing reasons, this application is allowed. The Board orders the employer to pay the applicant eight weeks’ pay as termination pay, and 4% thereon as vacation pay.
“Brian McLean”
for the Board