2042-00-ES 1059510 Ontario Limited o/a Downtown Chrysler Plymouth Jeep Eagle, Applicant v. Mark Middleton and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 32006409
BEFORE: Caroline Rowan, Vice-Chair.
APPEARANCES: Cathy Brack, Rick Black and Calvin Chew for the applicant; Mark Middleton appearing on his own behalf; Karen Northey for the Ministry of Labour.
DECISION OF THE BOARD; June 5, 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 an Order to Pay in the amount of $2,333.76. The Order to Pay relates to three (3) weeks termination pay plus statutory vacation pay thereon found to be owing to the claimant, Mark Middleton, by the applicant, 1059510 Ontario Limited o/a Downtown Chrysler Plymouth Jeep Eagle (the “Company”).
The Company alleges that the claimant quit his employment and is not therefore entitled to termination pay. The Employment Standards Officer, however, found that the Company terminated the claimant’s employment immediately after the claimant gave notice of resignation to the Company and as such that the Company “…has turned what would have otherwise been a resignation into a termination”. The Employment Standards Officer therefore determined that the claimant is entitled to termination pay.
The issue in this case centres on whether or not the events of January 26, 2000 indicate that the claimant quit his employment effective immediately or whether or not his employment was, in fact, terminated effective that day when he announced his intention to resign at a later date.
There is no dispute that the quantum of the Order to Pay determined by the Officer is correct in the event that the Board finds that the claimant’s employment was, in fact, terminated.
Facts
The Board heard evidence from three (3) witnesses called on behalf of the Company: Ms. Catherine Brack, Secretary Treasurer and part owner of the Company, Mr. Rick Black, the claimant’s immediate supervisor, and Mr. Calvin Chew, one of the claimant’s co-workers. The claimant testified on his own behalf. There were relatively few material facts in dispute.
The claimant was employed as a mechanic with the Company for more than three (3) years. His last day of work was on January 26, 2000. On that day, the claimant visited Ms. Brack’s office sometime in the morning to request that she provide him with a letter (either a letter of employment or a letter of apprenticeship). To this end, the claimant provided Ms. Brack with a handwritten statement of the items that he wanted her to include in the letter. As Ms. Brack was busy, she asked him to leave the statement on her desk and she told him she would get to it later.
After the claimant left Ms. Brack’s office, she started to prepare the letter but stopped when she realized that the claimant was asking her to certify that he had completed various courses relevant to his trade and that he had performed specific repairs or operations on vehicles. She explained that she had no first hand knowledge of the statements she was being asked to certify and therefore felt that she could not do so. As a consequence, Ms. Brack went to speak to the claimant’s supervisor, Mr. Black. She gave him the handwritten statement provided to her by the claimant and then asked Mr. Black to review and approve it. She also asked Mr. Black why the claimant was coming to her directly rather than to him, since he was the claimant’s direct supervisor.
Mr. Black took the letter from her and then went to find the claimant, who was working on a car. This occurred at about 10:30 or 11:00 a.m. that day. Mr. Black questioned the claimant as to why he had brought the request directly to Ms. Brack, to which question he says he received no real response. Mr. Black then went on to tell the claimant that he could not verify a number of the items set out in the hand written statement. The claimant responded by taking the hand written statement that he had originally given to Ms. Brack from Mr. Black’s hand, saying words to the effect of “don’t worry about it, just forget it”.
A short while later, at around lunchtime, Ms. Brack saw the claimant in the Service Department. She explained that she was sorry that she had not been able to do the letter. She told him that she had given the written statement to Rick (Black) and that when she got it back she would provide the letter to him. According to Ms. Brack, the claimant responded by becoming very irate and said: “I quit”. He then went on to express that he was fed up. Although there is a difference between Ms. Brack and the claimant as to the precise words used, there is, in any event, no dispute that the claimant said “I quit” at least once according to the claimant and twice according to Ms. Brack. Ms. Brack’s response was to tell the claimant to speak to Rick (Black), his supervisor.
When Mr. Black returned from lunch, Ms. Brack told him that the claimant had quit. Mr. Black testified that he was not surprised to hear this, since it was common knowledge that the claimant was looking for another job in the fire department. Upon hearing this news, Mr. Black went to the shop to find the claimant. Mr. Black told him that he had heard that the claimant had quit his employment, at which point the claimant again expressed that he was fed up and that he was quitting as a consequence.
There is a difference between the claimant and Mr. Black concerning which one of them raised the subject of a letter of resignation. According to Mr. Black, he asked the claimant to provide notice of resignation in writing. The claimant, on the other hand, contends that he was the one who volunteered to provide notice of resignation in writing. There is, in any event, no dispute that no written notice of resignation was ever provided by the claimant that day or subsequently and that Mr. Black and the claimant never specifically discussed when the claimant’s resignation was to be effective.
Instead, Mr. Black assumed that the claimant was quitting effective that day. When the claimant continued to work on cars after he had verbally indicated his intention to resign, Mr. Black assumed that the claimant was going to complete the work he had started on specific cars and that the claimant would be leaving at the end of the day. The claimant, on the other hand, stated that he intended to give several weeks notice of his resignation. He explained that he had lined up another job, which did not commence until a few months later, and that he had planned to take only a few weeks off in between jobs.
According to the claimant, Mr. Black told him sometime in the afternoon that the owner, Mr. Brack, wanted him off the property as soon as possible. Mr. Black denies making this statement. Having considered these conflicting accounts and having regard to such factors as what seems most probable having regard to the evidence as a whole, the Board has determined that the claimant’s recollection on this point is likely more accurate. Although the Board found both Mr. Black and the claimant to be generally credible and reliable witnesses, the Board notes that over a year had passed between the date of hearing and the day in question. Given that Mr. Black was operating on the assumption that the claimant intended to leave that day in any event, the statement attributed to him is one to which he may not have attached a great deal of significance at the time in the circumstances.
On the other hand, the Board notes that the claimant’s account is consistent with the information he provided on his claim submitted to the Ministry of Labour, which he wrote shortly after the day in question. His account is also consistent with his uncontradicted evidence (discussed in detail below) of the events that unfolded after Mr. Black left for the day.
In this regard, the claimant testified that he had a conversation with Mr. Bill Brack, the owner, later that day after Mr. Black had left the workplace. The claimant explained that at the end of the day, he met with Mr. Brack for about 10 or 15 minutes during which time they argued. During the course of that argument, it became apparent to the claimant that Mr. Brack believed that the claimant was quitting effective that day. As a consequence, the claimant clarified that he was not planning to leave for several weeks. According to the claimant, Mr. Brack told him not to worry, that he would pay him but that he just wanted the claimant to leave at the end of the day.
The claimant explained that he had never given written notice of his resignation “because they wanted me off the property as soon as possible”. As a consequence, the claimant proceeded to pack up his belongings with the assistance of two employees, one of whom was Mr. Calvin Chew. The claimant never returned. A week or so later, after the claimant received his final pay which did not include any amount for termination pay, he phoned the Company’s office. Mr. Brack came on the phone and now told him that the Company would not pay him because he had quit.
The Board notes that Mr. Brack was not called to testify and as such the claimant’s evidence regarding their discussions that day was not contradicted. In addition, the Board observes that the claimant’s evidence about the contents of his conversation with Mr. Brack is consistent with the statements the claimant made to Mr. Chew when the claimant was packing up his belongings that day. In this regard, Mr. Chew testified that the claimant had informed him at that time that the claimant had had an argument and was told to leave the building. The claimant did not, however, indicate to Mr. Chew specifically who had told him to leave.
In all of the circumstances, the Board accepts the claimant’s evidence that he clearly advised Mr. Brack, the owner of the Company, that he did not intend to resign effective immediately, but rather that he intended that his resignation be effective several weeks later. Mr. Brack did not give the claimant the opportunity to confirm that intention in writing, but rather responded by directing the claimant to leave immediately on the promise that the claimant would be paid instead. As a consequence, the claimant packed up his belongings and never returned.
Decision
The Company, as the applicant, bears the onus of proving that the Employment Standards Officer’s finding that the claimant’s employment was terminated was in error and that the Order to Pay should therefore be revoked. Adjudicators and referees under the ESA have found that there are two elements necessary to a finding that an employee has quit his or her employment. Firstly, there must be some act indicating an intention to quit, such as a statement by the employee to the employer of an intention to resign. Secondly, there must also be some action on the part of the employee indicating that his or her intention has been carried out. As such, the expression by an employee of words such as “I quit” without reference to any period of notice may not on its own be sufficient to conclude that the employee either intended to resign and/or that the employee intended to resign without notice.
In Shafari International Ltd. (Re), ESC 95-28 (January 27, 1995 - Palumbo), the Referee explained the rationale for this in the paragraphs cited below. In that case, the issue before the Referee was similarly whether or not the employee in question had, after indicating her intention to resign, provided two weeks notice of that intention and had then been terminated by her employer during that notice period. The Referee reviewed the relevant principles as follows commencing at p. 8:
The most oft-quoted passage on the issue of "quit" is from Palmer's Collective Agreement Arbitration in Canada (second edition) at pages 271-274 where he states:
Central to an understanding of the law in this area an awareness that the right to "quit" employment is personal to the employee and that there must be "clear and unequivocal" facts to support a conclusion that this right has been exercised by the employee involved. Consequently, arbitrators have developed the view that there is both a subjective and an objective element to a "quit": first, an employee must form an intent to quit his employment; and, second, he must carry out an act inconsistent with his further employment. The rationale for this approach was stated clearly as being:
.... (T)he understanding and recognition by arbitrators that the uttering of the words "I quit" may be part of an emotional outburst, something stated in anger, because of job frustration or other reasons, and as such it is not to be taken as really manifesting an intent by the employee to sever his employment relationship...
There is no doubt that the Claimant [in Shafari International Ltd., supra] formed an intent to quit and acted in a manner consistent with that intention. However, the question is whether she, without any obligation to do so, provided the employer with notice of that intention such that she, should not have been dismissed without notice of termination or pay in lieu thereof. It is reasonable to conclude that in certain circumstances, an employee, because of the frustrations associated with the job, or for other reasons, does not have the intent to "quit" when she utters the words "I quit". One can equally imagine a situation in which an employee who, because of the circumstances in which she finds herself, utters the phrase "I quit", does not voluntarily indicate a period of notice, but nevertheless acts in a manner consistent with the giving of such notice. In these circumstances, it is reasonable to conclude that the employee has in fact voluntarily given notice to the employer of her intention to resign, effective as of a certain future date. That is, where, during an emotional outburst, an employee has indicated an intention to resign her position, and takes steps as soon as is reasonably possible to provide notice of her resignation, then in my view such notice has been given.
In situations where employees have given notice of an intention to resign, Referees have made it clear that an employer cannot terminate them without notice or pay in lieu of notice prior to the date the resignation is effective.
In my opinion, an employee's resignation which is effective at a future date, does not authorize an employer to terminate his/her employment with immediate effect. An employee's resignation does not bring the employment relationship to an end until the date chosen by the employee. I find support for this view in the provisions of subsections 7 and 8 of section 40 [now subsections 14 and 15 of section 57] of the Employment Standards Act.
On the facts of that case, the Referee found that the claimant intended to resign and did so with a two week notice period, but was subsequently told by her employer not to enter the workplace prior to the end of the two week notice period chosen by the claimant. In these circumstances, the Referee found that “…the situation changed from being a “quit” to a termination without notice or pay in lieu of notice.” The Order to Pay was therefore affirmed.
In the present case, there is no dispute that the claimant indicated his intention to resign when he announced “I quit” to both Ms. Brack and Mr. Black on January 26, 2000 in circumstances in which he also expressed frustration with his job. He, however, then continued to work for the balance of the day and subsequently advised Mr. Brack that he did not intend to resign for several weeks. In these circumstances, the Board finds that the claimant expressed an intention to resign but that his subsequent actions, although consistent with an intention to resign, were not consistent with an intention that his resignation be effective that day as contended by the applicant. Instead, the Board finds that the claimant’s actions were consistent with an intention to resign several weeks later.
In the circumstances, the Board finds that the Company transformed the claimant’s intended quit into a termination for the purposes of the ESA when Mr. Brack told him to leave that day. (See for example, 517018 Ontario Ltd. (Re), July 21, 1989 (Kilgour) ESC 2539; Isaac (Re), August 23, 1990 (Eaton) ESC 2743; Shafari International Ltd. (Re), supra; Preston (Ian) (Bridgemark Aerospace Ltd. (Re), ESC 95-26 (January 25, 1995 - Palumbo). As such, the Board finds that the claimant is entitled to compensation in lieu of notice of termination.
Disposition
- For all these reasons, the Order to Pay is hereby affirmed. The Board directs that the monies held in trust including interest accumulated thereon, less the statutory administrative costs, be paid to the claimant, Mark Middleton.
“Caroline Rowan”
for the Board