Seema Sharma v. Cosgrove Moore Bindery Services and Ministry of Labour
4085-98-ES Seema Sharma, Applicant v. Cosgrove Moore Bindery Services and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 30012386
BEFORE: Mary Ellen Cummings, Alternate Chair.
APPEARANCES: Seema Sharma and Vijay Sharma for the applicant; Karima Chatur for the Ministry of Labour; no one appearing for the responding party employer.
DECISION OF THE BOARD; July 13, 2000
1This is an employee appeal from an Officer's determination that the applicant was not entitled to termination and severance pay pursuant to the Employment Standards Act (the “Act”) because she had quit her employment.
2When the hearing commenced, no one appeared on behalf of Cosgrove Moore Bindery Services Limited (the employer) although it had been sent reasonable notice of hearing. Following our usual practice, we waited until 10:00 am and then started the hearing.
3Seema Sharma was a labourer with the employer. She started her employment in August 1990. On May 29, 1996 she was involved in a non-work related motor vehicle accident and suffered back and neck injuries. She received disability benefits through automobile insurance, and then disability benefits through her employer. Her employer's insurance carrier requested that she return to a "work hardening" program in June of 1998.
4Ms. Sharma started working an hour a day, and eventually built up to a full work week. Then on July 27, 1998, the day before Ms. Sharma was to start working full time, she had a meeting with her manager, Jean Fillipini about a work injury to her finger and feelings of dizziness. Ms. Sharma testified that Mr. Fillipini told her that he did not want sick people working for him, and that she should leave and not return.
5On the basis of that conversation, Ms. Sharma left, and on August 17, 1998 filed an employment standards claim for termination and severance pay. Ms. Sharma received no letter of termination and no Record of Employment. She continued to be paid disability benefits by the employer's insurer until the end of August 1998 and the employer continued to make benefit contributions on her behalf. On August 4, 1998, Ms. Sharma's bother delivered to the employer a letter from Ms. Sharma's physician indicating that she was fit to work.
6At the end of August (Ms. Sharma does not remember the date) she left Canada to visit her country of origin, where her husband, who is ill, resides. She intended to stay two or three months. Ms. Sharma said that she began making plans for the trip after her July 27, 1998 meeting with Mr. Fillipini.
7Ms. Sharma's brother testified that he called the employer in late August asking about a disability check for his sister. Debra Guneyler, an employee of the employer with responsibility for human resources, asked to speak to Ms. Sharma. At that time, Mr. Sharma advised Ms. Guneyler that there would be no further discussions because they had filed an employment standards claim.
8On August 26, 1998, Ms. Guneyler sent a letter to Ms. Sharma indicating that she had been trying to contact the applicant for days, and that it was Ms. Guneyler's understanding that Ms. Sharma left on July 27, 1998 because she was feeling dizzy, and would return to work once her neurologist cleared her for work. Ms. Guneyler asked Ms. Sharma to provide a response about her medical status within 5 days. Ms. Guneyler sent a further letter on September 9, 1998 again requesting an update on Ms. Sharma's status.
9By this point, Ms. Sharma had left Canada. Her brother responded to the employer's letters, setting out Ms. Sharma's version of the July 27, 1998 meeting, and asserting that the employer was now changing its story to avoid paying termination and severance pay.
10The employer wrote again to Ms. Sharma on October 15, 1998, imploring Ms. Sharma to return, and again setting out the employer's view of what happened on July 27, 1998. There was no response to that letter, although Mr. Sharma agreed that it had been received. Meanwhile, Ms. Sharma's family was involved in a horrific car accident, in which her sister-in-law was killed, and her two children very seriously injured. Ms. Sharma stayed in her country of origin to look after the children. She stayed nearly two years.
11The Employment Standards Officer convened a fact-finding meeting in November of 1998. Ms. Sharma did not attend. According to the Officer's letter, at that meeting, the employer reiterated that it had not terminated Ms. Sharma, and said her job was available. The Officer received from the employer a copy of a letter addressed to Ms. Sharma indicating that her job was still available, and setting a deadline to hear from her. Mr. Sharma testified that this letter was not received from the employer, although he had received all the others. It was on the basis of Ms. Sharma's failure to take up the employer's offer that the Officer concluded that Ms. Sharma had quit her job.
12Of course, no one from the employer testified. I have only Ms. Sharma's version of what transpired at the July 27, 1998 meeting. She is certain that Mr. Fillipini told her that he did not want a sick person in the workplace, and that she should leave and not return. However, even without testimony from Mr. Fillipini and anyone else from the employer, I have doubts about Ms. Sharma's evidence. First, her communications in the hearing indicated that she does not have a good command of English, so it is quite possible that she misunderstood the discussion with Mr. Fillipini. Second, she provided a doctor's note to the employer on August 4, which is not a logical thing to have done, if she thought she had already been terminated. Third, she was given no letter of termination or Record of Employment, and fourth, the employer continued to pay her disability benefits and make benefit premium payments on her behalf until at least the end of October. These elements, taken together, satisfy me that Ms. Sharma was not terminated on July 27, 1998.
13Mr. Sharma submitted that it was only when the employer knew Ms. Sharma had made an employment standards complaint, that it changed its story. I do not think that the objective facts bear that out. The employer gave her no Record of Employment or termination letter, and continued to make benefit premium payments on her behalf.
14But even if I had found that Ms. Sharma was terminated in July 1998, and the employer changed its mind in August I would not have awarded termination pay in this matter. It is undisputed that the employer has on at least 3 occasions written to Ms. Sharma, indicated that she was not terminated, and sought her return to work. As late as the fact-finding meeting, the employer was prepared to take her back to work. When I asked Ms. Sharma why she did not take up any of these offers, her only response was that they had terminated her. Her brother testified that it was his position that the employer had to pay her termination and severance pay first, then Ms. Sharma could go back as a new hire.
15That position, with all respect, is ludicrous. People, including employers, make mistakes. To interpret the Act in a manner that did not leave room for the correction of an error, and to reward an employee who stubbornly took advantage of that error would be a disservice to employers and employees.
16In any event, as I set out earlier, having regard to all the evidence, I am not satisfied that Ms. Sharma was terminated on July 27, 1998. At best, she misunderstood Mr. Fillipini. At worst, she created a situation that would allow her to continue her almost two year absence from the workplace and take a 2 to 3 month trip to visit her family.
DISPOSITION
17For the reasons set out above, this application is dismissed.
“Mary Ellen Cummings”
for the Board