0042-01-ES The Dive Shop, Applicant v. David Ritchie, Employment Standards Officer, and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 41009575
BEFORE: Caroline Rowan, Vice-Chair.
APPEARANCES: James Rogers for the applicant; David Ritchie for the responding employee; Richard Housen for the Ministry of Labour.
DECISION OF THE BOARD; December 4, 2001
This is an application under section 68 of the Employment Standards Act, R.S.O. 1990, c.E-14, as amended (the “ESA”) for review of Order to Pay No. 59905 dated March 22, 2001 in the amount of $998.40 plus a statutory administrative cost of $100 for a total of $1,098.40. The Order to Pay in issue relates to termination pay and vacation pay thereon found by the Employment Standards Officer to be owing to the claimant, Mr. David Ritchie, by his former employer, The Dive Shop (the “Company”), as a result of the termination of his employment on or about April 11, 2000.
Since neither the applicant, nor the responding parties were represented by counsel, I indicated at the outset of the hearing that although there is no requirement that persons appearing before the Board retain counsel, persons appearing on their own must bear any risks involved with doing so. I also indicated that the Board cannot advise unrepresented parties as to how they should proceed.
The claimant and the Ministry take the position that the claimant is entitled to termination pay and vacation pay thereon on two separate grounds. Firstly, they contend that the claimant was constructively dismissed from his employment when his duties and responsibilities were changed following a meeting between Mr. Ritchie and Mr. Rogers, the owner of the Company, on or about February 18, 2000. In the alternative, they contend that the claimant is, in any event, entitled to termination pay and vacation pay thereon as a consequence of Mr. Rogers’ refusal to allow Mr. Ritchie to work out a period of two weeks’ notice of his resignation offered to Mr. Rogers on April 11, 2000.
The applicant, on the other hand, disputes that the claimant offered to work a period of two weeks’ notice on April 11, 2000 when he announced his intention to resign. According to Mr. Rogers, the claimant offered to work a period of a “few days” only (which Mr. Rogers interpreted as meaning three days) and that he refused that offer. Mr. Rogers on behalf of the applicant concedes that Mr. Ritchie is entitled to compensation for those three days, but disputes that the Company is liable for two weeks’ compensation found owing by the Employment Standards Officer. The applicant also disputes the Employment Standards Officer’s finding that the claimant was constructively dismissed from his employment and maintains that the claimant’s hours of work as well as his duties and responsibilities remained unchanged during the entire period of his employment.
There is no dispute between the parties that the quantum of the Order to Pay determined by the Officer representing two weeks termination pay plus vacation pay thereon is correct in the event that the Board finds in the claimant’s favour.
The Board heard evidence with respect to the two issues in dispute from Mr. Rogers and from Mr. Ritchie. In assessing the conflicting evidence in this case and arriving at my findings of fact, I have considered all of the evidence and have taken into account the demeanour of the witnesses, the clarity of their evidence, the witnesses’ apparent ability to recall events and to resist the tug of self-interest in their responses to the questions, and what seems most reasonable and probable in all the circumstances having regard to the evidence as a whole.
The Company is in the business of scuba sales and service as well as instruction. The claimant worked at the Company’s shop for a period of approximately two years. His duties and responsibilities included serving customers, receiving stock, providing scuba lessons on the weekend as required and performing the day-to-day functions of the small business. These functions ranged from mopping up and tidying the store to attending trade shows on the Company’s behalf.
In or about January 2000, the claimant began considering looking for employment elsewhere and, to that end, began looking at job advertisements in the local paper at around that time. Mr. Ritchie states that he made up his mind to search for employment elsewhere in earnest following a meeting between himself and Mr. Rogers on or about February 18, 2000. By all accounts, the claimant refused Mr. Rogers’ proposal that Mr. Ritchie earn a salary rather than an hourly rate during the course of that meeting. In refusing, the claimant explained to Mr. Rogers that he did not wish to do so, since he was concerned that Mr. Rogers would not be fair to him regarding the hours that he would be expected to work if he was being paid a salary.
According to the claimant, Mr. Rogers told him in response that Mr. Ritchie did not have a future with the Company and, in effect, demoted him from the position of manager to that of a mere sales representative. Mr. Ritchie claims that his hours of work, which had previously been consistently in the range of 88 hours every two weeks, were reduced thereafter and that he could no longer count on having a set schedule of work. Mr. Rogers disputes that there was any change to Mr. Ritchie’s duties and responsibilities or his hours of work in the period after February 18, 2000. There is no dispute, however, that Mr. Rogers did increase Mr. Ritchie’s rate of pay by a dollar an hour in the period following February 18, 2000.
On or about April 10, 2000, Mr. Ritchie was offered a position at the Bay in Newmarket. Mr. Ritchie testified that a representative of the Bay informed him at that time that he should give his current employer two weeks notice of his resignation in accordance with the Bay’s policy to that effect. Mr. Ritchie stated that, although he would have done so in any event as he believed that that was the right thing to do, he was particularly anxious to do whatever his new employer told him to do.
The next day, on April 11, 2000, Mr. Ritchie went into the store to speak to Mr. Rogers about his intention to resign his employment. Mr. Ritchie believes that he was not otherwise scheduled to work that day. Mr. Ritchie states that he advised Mr. Rogers that he had been offered a job elsewhere and that Mr. Rogers asked him where and Mr. Ritchie told him. Mr. Ritchie states that he then offered to work a period of two weeks notice, but that Mr. Rogers did not respond at all to that proposal. At that point, Mr. Ritchie states that he asked Mr. Rogers what he would like him to do and Mr. Rogers responded that he should just go.
Mr. Rogers’ version of that conversation differs. He contends that Mr. Ritchie offered him notice of a “few days” only - not two weeks. Mr. Rogers interpreted a “few days” to mean a period of three days. According to Mr. Rogers, he responded by saying that he could not replace Mr. Ritchie that quickly and that he might as well just leave. Mr. Rogers maintains that if Mr. Ritchie had given him two weeks’ notice of his resignation, he would have gladly accepted that offer, since he was very short-staffed at that time. He also explains that he was in particular need of assistance at or around this time, since he had recently been released from hospital.
Having considered these conflicting accounts, and for the reasons that follow, I prefer Mr. Ritchie’s account of what transpired on April 11, 2001 to that of Mr. Rogers. I find that, on April 11, 2001 when Mr. Ritchie announced his intention to resign, he offered Mr. Rogers two weeks notice and that Mr. Rogers rejected that proposal by asking him to leave immediately.
Mr. Ritchie’s evidence about the conversation between himself and Mr. Rogers on April 11, 2000 was given in a clear and forthright manner and seems more consistent with what is likely in all of the circumstances. In this regard, I accept his explanation that he offered two weeks’ notice of his resignation, in part, because he was anxious to do what had been suggested to him by his new employer.
Mr. Rogers’ account, on the other hand, is less compelling. Mr. Rogers did not, for example, suggest that he ever asked Mr. Ritchie to clarify what Mr. Ritchie meant by a “few days” notice, before he rejected that offer as inadequate. Had Mr. Rogers truly been interested in having Mr. Ritchie work out an adequate period of notice, it is reasonable to expect that Mr. Rogers would have, at least, clarified what amount of time Mr. Ritchie actually contemplated working before rejecting his proposal.
In addition, Mr. Rogers’ explanation that he rejected Mr. Ritchie’s proposal on the basis that it was inadequate seems implausible. Had Mr. Rogers truly been content to have Mr. Ritchie work a period of notice because he was short-staffed, it is difficult to understand why he would not have accepted whatever assistance was being offered in the circumstances. Instead, it seems more likely that Mr. Rogers was simply upset that Mr. Ritchie had decided to quit and as a consequence was not prepared at that time to allow Mr. Ritchie to work any period of notice even though refusing to do so may have left him short-staffed.
In all of the circumstances, the Board finds that the applicant transformed the claimant’s intended quit into a termination for the purposes of the ESA when Mr. Rogers rejected Mr. Ritchie’s proposal to provide two weeks’ notice of his resignation and, in effect, told the Mr. Ritchie to leave that day. (See for example, Murray and Courtis, February 20, 1987 (Aggarwal) ESC 2231; 517018 Ontario Ltd. (Re), July 21, 1989 (Kilgour) ESC 2539; Isaac (Re), August 23, 1990 (Eaton) ESC 2743; Shafari International Ltd. (Re), ESC 95-28 (January 27, 1995 – Palumbo); Preston (Ian) (Bridgemark Aerospace Ltd. (Re), ESC 95-26 (January 25, 1995 – Palumbo).
Having regard to the Board’s finding that the applicant transformed the claimant’s intended quit into a termination when it refused to allow him to work out his proposed notice period, it is unnecessary to determine whether or not the claimant had also been constructively dismissed from his employment. The Board finds that the claimant is, in any event, entitled to two weeks’ compensation in lieu of notice of termination and vacation pay thereon.
DISPOSITION
- For all these reasons, the Order to Pay is hereby affirmed. The Board directs the monies held in trust including interest accumulated thereon, less the statutory administrative costs, be paid to the claimant, Mr. Ritchie.
“Caroline Rowan”
for the Board