1064515 Ontario Limited o/a Carson Collision Centre v. Timothy Fulton and Ministry of Labour
Employment Practices Branch File No. 43002317
BEFORE: Anthony Brown, Vice‑Chair.
APPEARANCES: Peter Kinal for the applicant; no one appearing for Timothy Fulton and Margo MacKinnon for the Ministry of Labour.
DECISION OF THE BOARD; December 27, 2000
This is an application for review of an order to pay issued by an Employment Standards Officer.
A hearing was held on December 5, 2000. The applicant and Ministry of Labour were in attendance. The responding party Timothy Fulton did not appear.
The issue in this application is whether the applicant terminated Timothy Fulton or whether Mr. Fulton quit his employment.
Peter Kinal testified for the applicant. He is a manager of Carson Collision Centre, a body-shop owned by his brother Mark Kinal. Mr. Timothy Fulton was employed by Carson Collision from May 25, 1999 to December 17, 1999. Mr. Fulton worked at $10.00 per hour preparing automobiles for body work. Mr. Kinal testified that Mr. Fulton had a history of frequent lateness and absences from work and was given verbal warnings that this conduct was unacceptable. On some of these occasions, he was sent home, but would return the next day.
On December 17, 1999, Mr. Fulton’s brother, James, who also worked at the body shop, became involved in a fight with another staff member. Timothy Fulton intervened. After the fight ended, the Fulton brothers left the premises. Peter Kinal was not present during the fight. Three or four days later, Timothy Fulton showed up at Carson Collision. The police arrived (although it is uncertain who notified them) and Mr. Fulton was taken was away for questioning regarding the fight. Peter Kinal was not present on this occasion.
A few days after the fight, Mr. Fulton again showed up at Carson Collision. Mr. Kinal stated that Mr. Fulton was inebriated and he told him: “You’re drunk, get the hell out of here.” Mr. Kinal candidly admitted that he does not know whether he would have permitted Mr. Fulton to resume his duties on that day had he not been inebriated. Mr. Kinal did not have contact with Mr. Fulton after this incident with the exception of a phone call in which Mr. Fulton asked him “How could you do this to me so close to Christmas?” to which Mr. Kinal replied “Do what?” Mr. Kinal stated that he was doing paper work at the time and did not have time to discuss matters with Mr. Fulton. He is unsure of the date of the phone call.
Mr. Fulton subsequently came into work to get his Record of Employment from the applicant’s bookkeeper. Mr. Kinal did not speak with him on this occasion. Mr. Kinal recollected this as being before Christmas. However, the Record of Employment is dated January 7, 2000. The Record of Employment filled out by the bookkeeper states: “This employee and his brother attacked another employee – the police were called resulting in both (illegible) being charged and they are prohibited by the police from entering our premises.” Another notation on the Record of Employment, apparently by an employee of Human Resources Development (Canada) states that Timothy Fulton was not charged and was released unconditionally.
Mr. Kinal stated that the company assumed that Mr. Fulton was not coming back to work after the incident involving the fight. He testified that Mr. Fulton was not told that he was fired. Mr. Kinal stated that because the body shop was so busy, they could not afford to do without Mr. Fulton, despite his pattern of absences. He considered it a “mixed blessing” that Mr. Fulton had quit.
Mr. Kinal stated that he did not have Mr. Fulton’s phone number and could not call him to ask him what his intentions were after the fight incident.
Submissions
The applicant submits that Mr. Fulton was not fired. It submits that Mr. Fulton quit his employment.
The Ministry of Labour submits that there was a termination. It further submits that Mr. Fulton’s absenteeism was condoned by the company, which never followed through on its warnings. It submits that Mr. Fulton was given the impression by the company that he was not welcome to return to work because the police were called when he returned to the workplace.
Decision
The first issue for the Board is whether or not Mr. Fulton quit his employment or was terminated.
The only viva voce only evidence before the Board is that of Peter Kinal. Mr. Kinal was not present when Mr. Fulton came back to work three or four days after the fight and he therefore does not know what may have been said to Mr. Fulton by anyone else about whether Mr. Fulton was welcome to return to work.
It appears to the Board that the applicant company was willing to put up with a great deal from Mr. Fulton. By and large it was happy with the quality of his work although it was frustrated by his frequent lateness and absences. The company was also aware that Timothy Fulton was not the instigator of the fight and was never charged as a result of the fight.
There is no reliable evidence before the Board to contradict Mr. Kinal’s evidence that Mr. Fulton was never told that he could not come back to work.
In the Board’s view, Mr. Fulton quit his employment. He, by his own actions, created a situation in which his return to work was difficult. He had been involved in a fight and he left work after the fight. Three or four days went by without word. He had effectively abandoned his job.
The Board does not have evidence as to why Mr. Fulton showed up three or four days after the fight, nor as to why Mr. Fulton also showed up a few days after that. Nor is the Board prepared to place any weight upon what may have transpired in the subsequent phone conversation with Mr. Kinal. There is simply no way of knowing what Mr. Fulton may have meant by “How can you do this to me just before Christmas?” or words to that effect. Nor am I prepared to accept based on the notation by the book keeper on the Record of Employment that the company had taken steps to have the police intervene if Timothy Fulton set foot on Carson Collision premises. Indeed, the police were not called when Mr. Fulton did show up a few days after being questioned by police.
Disposition
The Order to Pay is rescinded.
The Director of Employment Standards is directed to return the money held in trust, including the administration fee ($617.92) to the applicant with applicable interest.
“Anthony Brown”
for the Board