1117-00-ES Helen V. Calaguas, Applicant v. Emu Plastic Limited, Catherine Bates, Employment Standards Officer and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 34002467
APPEARANCES: Helen V. Calaguas on her own behalf; Jonathan Cocker for Emu Plastic Limited; no one appearing for Catherine Bates or the Ministry of Labour.
BEFORE: Harry Freedman, Vice‑Chair.
DECISION OF THE BOARD; December 4, 2000
This is an application under section 68 of the Employment Standards Act, R. S. O. 1990, c. E. 14, for review of the refusal of Employment Standards Officer Catherine Bates dated May 29, 2000 to issue an order to pay against Emu Plastics Limited (the "Company"), the former employer of the applicant. The applicant had claimed entitlement to five weeks' notice of termination pay under section 57(1)(e) of the Act because she had been employed for just under six years at the time she was dismissed. She sought five weeks' pay under section 57(14) of the Act because the Company had failed to provide her with the requisite written notice when it terminated her employment on January 18, 2000. Ms. Bates refused to issue an order to pay against the Company on the grounds that the applicant was not entitled to notice of termination (or pay in lieu of such notice) by reason of section 57(10) of the Act, which provides that an employee who engages in wilful misconduct not condoned by the employer is not entitled to written notice of termination under section 57(1) of the Act. Ms. Bates decided that the applicant's wilful misconduct was the reason for her termination of employment and therefore the Company was not required to provide the applicant with five weeks' notice (or pay in lieu of such notice). This application to review Ms. Bates' refusal to issue an order against the Company came before me for hearing on November 30, 2000.
The Company dismissed the applicant on January 18, 2000 because, according to the Company, the applicant had intentionally pushed another employee (Nhung Mai) two different times that morning after the applicant and Ms. Mai had exchanged words on the plant floor. The applicant denies having pushed Ms. Mai and claims that the Company had fabricated the entire incident to justify terminating her for cause and to avoid paying her termination pay.
Counsel for the Company submitted that the applicant had, in fact, resigned when she knew that she was going to be terminated, and in the alternative, she had been dismissed for engaging in wilful misconduct that had not been condoned. The Company submitted that the pushing incidents on January 18, 2000, which it characterized as a physical assault on Ms. Mai were sufficient, in isolation, to conclude that the applicant was guilty of wilful misconduct. Alternatively, the Company submitted that if the pushing incidents were not enough, those incidents together with a previous incident in which the applicant had severely pinched another employee and for which the applicant had been suspended without pay for three days were certainly enough to demonstrate a pattern of aggressive physical behaviour that constituted wilful misconduct.
At the hearing, the Company called three witnesses; Royce Jones, the applicant's supervisor who is also the Company's Quality Manager, Ms. Mai and Sandra Figeroux, another employee who observed some of the confrontation between the applicant and Ms. Mai. The applicant testified but did not call any other witnesses.
Mr. Jones described the "pinching" incident that had occurred on January 13, 2000. Mr. Jones had not witnessed what had occurred, but rather had received reports of the incident from Ed Jones, the executive assistant to the President of the Company. Royce Jones testified that after he became aware of the incident, he spoke with both the applicant and Elna Catian, the employee who was pinched by the applicant. Ms. Catian showed Royce Jones the bruise on her left arm caused by the pinch. The applicant told him that after she had pinched Ms. Catian, Ms. Catian had thrown an arm of a chair (a plastic piece manufactured by the Company) at the applicant and had hit her in the back.
The applicant was suspended for three days without pay as a result of the incident. At the time of the suspension, the applicant acknowledged in writing that she had read and understood the warning, in which the Company stated "3 day unpaid suspension, further misconduct will have further disciplinary action up to termination".
The applicant's first day back at work after the suspension was January 18, 2000. Ms. Mai testified that she approached the applicant near machine 21 that morning (Ms. Mai had worked the night shift and was just finishing when the applicant came to work) to confront her about certain statements Ms. Mai learned the applicant had made about her. Ms. Mai testified that she asked the applicant why she was saying things about her. The applicant, according to Ms. Mai, did not respond, but rather used both hands to push Ms. Mai on the chest. The applicant then proceeded down the aisle to the supervisor's office, went in and came out again. When she exited the office, Ms. Mai, who had followed her, asked her again for an answer to her question. Ms. Mai was aggressive in her tone towards the applicant. She testified that she had said, in a loud voice directed at the applicant, "Hey bitch, give me an answer." The applicant did not respond, but pushed Ms. Mai much more firmly, causing Ms. Mai to stumble backwards. The incident was reported to supervision. Royce Jones explained in his evidence that as a result of supervision learning of the pushing incidents, the applicant was asked to go to the Company's boardroom to wait until he could speak with her.
Ms. Mai's testimony was confirmed for the most part by Ms. Figeroux, who was working at a machine at the aisle down which the applicant went to go to the supervisor's office. Ms Figeroux saw the applicant go to the supervisor's office with Ms. Mai coming up behind her. She said that the applicant went into the office and then came out. Ms. Figeroux testified that she then saw the applicant push Ms. Mai with both hands.
The applicant testified that she and Ms. Mai exchanged words that morning. She testified that she told Ms. Mai that she did not want any arguments and then went to the supervisor's office. She said that when she went to that office and did not see the supervisor she went to the office of Royce Jones to wait for him. She testified that she did not push Ms. Mai at any time and that the Company's witnesses who said that she had were all lying. She did not provide any explanation for why all three witnesses would concoct the story. She did admit to having pinched Ms. Catian and to having received a three day unpaid disciplinary suspension for that incident.
Royce Jones also testified about his meetings with the applicant on the morning of January 18, 2000. He said in his evidence that when he learned of the altercation between the applicant and Ms. Mai, he met with the applicant in the company's boardroom to determine from her what had happened. Mr. Jones testified that at his first meeting with the applicant, she told him that she and Ms. Mai had had an altercation. Ms. Mai had called her names, and that the applicant had pushed her and then had pushed her again. Mr. Jones asked the applicant if Ms. Mai had pushed her and the applicant said that she had not. He also testified that the applicant had told him that the first altercation between her and Ms. Mai had taken place near machine 21 and that the second pushing incident occurred near the supervisor's office.
Mr. Jones testified that he left the applicant in the boardroom to speak with Ms. Figeroux, who confirmed what the applicant had told him in the boardroom. Mr. Jones also testified about what Spaso Cingarov, a maintenance mechanic/millwright who is no longer employed by the Company had reported to him. (Mr. Jones said that Mr. Cingarov described the incident to Mr. Jones and later provided a signed written statement to Mr. Jones that the Company wished to place before me. I indicated that I was not prepared to accept either Mr. Jones' evidence about what Mr. Cingarov had said to Mr. Jones or the written statement of Mr. Cingarov for the truth of its content, given that Mr. Cingarov was not being called to testify and therefore the applicant would not have the ability to challenge that evidence. The Company sought its admission to establish the basis for the Company continuing its investigation of the incident, and I received that evidence for that limited purpose.) With that information, Mr. Jones said he met with Ed Jones to review what Ed Jones had learned (I refused to receive any evidence from Royce Jones about what Ed Jones had told him about the statements concerning the incident Ed Jones received from the employees he interviewed) and then he returned to the boardroom where he spoke with the applicant again.
Royce Jones explained that when he met with the applicant the second time in the boardroom that morning, he began to relate to her what the others had said. Mr. Jones was telling the applicant that because of her aggressive physical behaviour towards the other employees, he had no choice but to dismiss her from employment with the Company. She told him at that point in the second meeting that she had not pushed Ms. Mai and that other people in the plant had told her that she was going to be set up. Mr. Jones testified that when the applicant told him that other employees had said that to her, he asked her who had said that type of thing. She did not tell him the name of anyone. Without any information about that from her, he began writing up the discipline form to discharge her. He testified that while he was doing that the applicant handed him a resignation letter she had prepared. He took it from her but then she asked if she could take her letter back. He said OK but she never actually took it back from him. She did not ask to have the letter back, and then, according to Mr. Jones, she asked him if she could go to the Ministry of Labour, to which he responded OK. Mr. Jones said that she left her resignation letter with him. Mr. Jones then escorted the applicant to her locker. During the walk to the locker or at the locker, the applicant, according to Mr. Jones, told him that he could keep the resignation letter and that she would call him later to tell him what to do with it. After the applicant left the plant, Mr. Jones did not receive any further directions from the applicant about that resignation letter.
The applicant in her testimony, as indicated earlier, denied having pushed Ms. Mai. She also testified that she had met with Royce Jones only once on January 18, 2000 and at that meeting, he simply told her that she was being terminated. She said that she had never seen the discipline form discharging her and pointed out that she had not signed it. Mr. Jones, in his evidence, had said that he had presented the form to her and she had refused to sign it. The applicant explained that she had given Mr. Jones the resignation letter because she knew why she had been called to the boardroom. The resignation letter was dated the day before the incident, the applicant explained, because she did not want to be terminated but preferred to have her record indicate that she had resigned. She testified that she had actually written the letter when she was told by Mr. Jones she was being terminated. Mr. Jones testified that he did not see her write the termination letter. Rather, the applicant handed him the letter that had been prepared earlier. She also testified that Mr. Jones had made up the story about being told by her that other employees had told the applicant that she was being set up.
In this case, there is little overlap between the Company's version of the events leading up to the applicant having ceased to be an employee of the Company and the applicant's version of what took place on the day her employment with the Company came to an end. I must decide which version is more credible based upon the objective evidence before me, the demeanour of the witnesses and the internal consistency of their testimony and ultimately what I consider more probable and likely to have occurred in all of the circumstances.
The applicant testified that she knew why she was being called up to the boardroom that morning, but also said that she had not pushed Ms. Mai. She said that she knew or expected that she would be fired and was ready to resign, but provided no explanation for that knowledge. The applicant could not give any reason for making that statement. If nothing had occurred, as the applicant suggests, other than an exchange of words between her and Ms. Mai, then the applicant should have been surprised and curious about why she was being asked to meet Mr. Jones in the boardroom.
Ms. Mai, in her evidence, was quite forthright about calling the applicant a bitch in an aggressive voice. Her evidence was consistent with the testimony of Ms. Figeroux, who testified after Ms. Mai and was excluded from the hearing room when Ms. Mai was giving her evidence. The termination document prepared by Royce Jones also notes that the applicant had claimed that she was going to be set up by other employees but would not give their names, and goes on to note that the applicant denies having pushed Ms. Mai.
In my view, it is quite improbable that the Company would fabricate a story about the applicant pushing Ms. Mai on the morning the applicant returned from a three day suspension, and at the same time have Mr. Jones put exculpatory comments in the termination document. The applicant's explanation about the resignation letter is also improbable. She acknowledged preparing the resignation letter on the day of the incident and giving it to Mr. Jones but could not explain why she expected that she would be fired. Furthermore, the evidence of Ms. Figeroux was straightforward. She saw the applicant push Ms. Mai. Her evidence was consistent with the evidence of Ms. Mai and Mr. Jones. If the Company had concocted the story, it is more likely that Ms. Figeroux's evidence would have related to both pushing incidents. She testified that she only saw the one later incident near the supervisor's office.
Perhaps most compelling is the absolute failure by the applicant to provide any reason whatsoever for the Company and the Company's three witnesses to go to such lengths to make up a story to justify the applicant's dismissal. The applicant has called no evidence to suggest that there was some ulterior motive behind her dismissal. The applicant simply says, "I did not do it. They're all lying. Believe me and don't believe them." Under the circumstances, and in view of the applicant's inability to explain how it was that she knew she was going to be terminated on that morning but that nothing had happened to cause her dismissal, I am satisfied that the applicant, in fact, pushed Ms. Mai in the chest twice, as claimed by the Company.
In the course of argument, I dismissed the Company's first submission that the applicant had resigned from her employment. I advised the applicant that she did not need to respond to the Company's argument on that point. It was clear to me that the applicant may have considered resigning when faced with being discharged, but was at best ambivalent about her intentions. She left the resignation letter with the Company, but indicated that she would let them know what she wanted them to do with it. After giving the letter to Mr. Jones, she asked if she could take it back, and then asked if she could go to the Ministry of Labour. There was not, in my opinion, an express intent demonstrated by the applicant to resign from her employment. She left the Company's premises after being escorted there by Mr. Jones. She did not, in my view, walk out after having resigned.
During the course of argument, I asked the applicant whether she was taking the position that the conduct the Company claims she engaged in did not warrant her dismissal without notice. I explained I wanted to know from her that if I found that the Company's version of the events had happened and not hers, was she arguing that she would be still entitled to termination pay. The applicant agreed that if I decided she had pushed Ms. Mai twice, as the Company claimed, then she had engaged in wilful misconduct warranting her dismissal without notice or pay in lieu of notice.
While the applicant's pushing of Ms. Mai might have been viewed as a momentary response to some provocation, the applicant denied touching her. The applicant did not suggest that she had been provoked by Ms. Mai's aggressive behaviour or that she had momentarily lost her temper that morning. Under these circumstances, I cannot conclude that the applicant's pushing of Ms. Mai was not wilful but rather an isolated provoked defensive response to aggressive shouting by Ms. Mai.
Even in the absence of the applicant's concession that her pushing of Ms. Mai would be wilful misconduct justifying termination without notice or pay in lieu of notice, I am persuaded that the events of January 18, 2000 in which the applicant pushed another employee twice, the second time hard enough to cause that employee to go back on her heels, when taken together with the pinching incident that occurred a few days earlier for which the applicant received a three day suspension, demonstrate that the applicant had engaged in wilful misconduct. As a result, pursuant to section 57(10)(b) of the Act, the applicant is not entitled to receive notice of termination mandated by section 57(1) of the Act or pay in lieu of such notice under section 57(14) of the Act.
Disposition
- This application for review of the refusal of Employment Standards Officer Catherine Bates dated May 29, 2000 to issue an order to pay against Emu Plastics Limited is dismissed.
"Harry Freedman"
for the Board