3690-00-ES Alpha-Omega Graphics & Print Media Services Inc. o/a Graphic Services, Applicant v. Robert Combe and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 61005445

BEFORE: Timothy W. Sargeant, Vice-Chair.

APPEARANCES: Sid Brouwer and Linda Winter for the applicant; Robert Combe and Maeve Randall for the claimant; Laurie Eisenberg for the Ministry of Labour.

DECISION OF THE BOARD; August 14, 2001

1. This is an appeal brought by the employer Alpha-Omega Graphics & Print Media Services (the “applicant”) pursuant to the Employment Standards Act, for a review of an Employment Standards Officer’s Order to Pay No. 58199.

2. The applicant takes the view that the employee, Mr. Robert Combe (“Combe”) quit his employment and thus was not entitled to termination pay.

3. A number of witnesses were heard from, including the owner and President of the employer, Mr. Sid Brouwer (“Brouwer”) and Mr. Combe.

4. Mr. Combe had been hired on February 29, 1996 as a press operator (and according to Mr. Combe as a production supervisor). His last day of employment was July 31, 2000.

5. It was evident from the evidence of all witnesses that the working relationship between Mr. Brouwer and Mr. Combe was to say the least not a happy relationship. Mr. Brouwer was concerned at alleged work habits of Mr. Combe. Mr. Combe on the other hand felt there were safety issues not being adequately addressed.

6. It was also apparent that at least around May of 2000, Mr. Combe was experiencing some personal problems at home, that had an indirect affect on the working relationship.

7. Matters came to a head in July of 2000. The employer was acquiring a new press; a four colour press. Mr. Combe had been operating a two colour press. The employer had advertised for a pressman to run the four colour press. Mr. Combe felt that he was capable of running the four colour press and was upset that the position had been advertised. Mr. Brouwer testified that because of his concerns with Mr. Combe’s alleged work habits, he did not want to have Mr. Combe operating this new press. It was an expensive piece of machinery and Mr. Brouwer wanted the best possible pressman to operate this new machine.

8. Mr. Combe had been on vacation and came back to work on July 31, 2000. According to Mr. Brouwer, Mr. Combe came in around 8:00 a.m. At the time Mr. Brouwer was involved in installing the new press. Mr. Brouwer had said good morning to Mr. Combe but was not acknowledged. Mr. Combe went to his press and worked a few minutes. Mr. Brouwer asked Mr. Combe to prepare some stock on the floor for the press. At that time Mr. Combe indicated he wanted to talk to Mr. Brouwer. Mr. Brouwer agreed but indicated the conversation should take place in his office. According to Mr. Brouwer, as they walked to the office, Mr. Combe said “I wanted to tell you to your face, I didn’t want to tell you by phone”. Mr. Brouwer made no response. They went to the office and Mr. Brouwer asked “What did you want to talk to me about”. Mr. Combe replied “he had had a good two weeks off and that he no longer wished to work for Graphic Services”. Mr. Brouwer said “OK, I accept your resignation effective immediately”. Mr. Brouwer then asked why and Mr. Combe indicated that Mr. Brouwer had advertised for the four colour press position and that “if he (Mr. Combe) stayed there for ten years he would be doing what he is doing now”. Mr. Brouwer indicated that he had had problems with Mr. Combe working the required hours and that it was difficult to advance somebody “when I couldn’t get him into work”. Mr. Combe then said “he was tired of my lies”. Mr. Brouwer said “I’ve already accepted your resignation effective immediately – I’m out of here”.

9. According to Mr. Brouwer he went out of the office and didn’t know where Mr. Combe went.

10. According to Mr. Brouwer, on August 1, 2000, Mr. Combe returned to work and left the following letter:

Aug.01/00

Dear Sid

It is unfortunate that after 4 years of service you felt that you had to fire me without notice, however life goes on. I have been in contact with the Labour board and they have assured me that you owe me one weeks worth of severance pay for every year of service, I hope you will abide by these rules without a fight.

While it will undoubtedly cause me financial hardship you can help me out by getting me my Record of Employment right away and if you could give me a letter of recommendation it would be much appreciated. Over the last 4 years I have done the best job that I was able, and I believe that this is reflected in your increased sales as well as customer satisfaction.

Sincerely Rob Combe

11. Mr. Brouwer was not surprised Mr. Combe was quitting as this seemed to Mr. Brouwer to be in accordance with earlier conversations he had had with Mr. Combe in May and June involving Mr. Combe’s personal problem. According to Mr. Brouwer, Mr. Combe’s expressed a desire at that time to leave printing for something less stressful.

12. Mr. Brower admitted in cross-examination by counsel for the Ministry that Mr. Combe had not said he was leaving immediately. Further, it was evident from the cross-examination that pressman are difficult to find. In Mr. Brouwer’s words “It is impossible to find press people”. In fact, it took some time to find a pressman for the four colour press, and to find another pressman to replace Mr. Combe. Cross-examination further established the person hired for the four colour press was allowed some flexibility in the hours required to be worked.

13. Mr. Combe’s testimony is strikingly different as to the events of July 31, 2000. Mr. Combe testified he came to work around 8:00 a.m. and had his lunch with him. He punched in and went to his press to hang up his jacket and put on his work boots. He then went over to say good morning to Mr. Brouwer. Mr. Brouwer indicated the work he wanted done, and Mr. Combe indicated he wanted to talk to Mr. Brouwer first. They proceeded to the office. Mr. Brouwer asked what was on Mr. Combe’s mind and Mr. Combe indicated three issues: (a) ventilation, (b) the fact that he had been left alone at night to work, and (c) the advertisement for the new four colour press position. Mr. Combe had understood from conversations with Mr. Brouwer’s son (who also worked at the premises) that this was to be Mr. Combe’s position. Mr. Combe admitted he was upset when he had seen the advertisement in the paper. Mr. Brouwer indicated that he couldn’t count on Mr. Combe “when jobs were there and he wasn’t going to hire me (Mr. Combe) for the position”. Mr. Combe felt insulted as he felt he had always been available for jobs. Mr. Combe said “if that is the way he felt I could stay and work the next ten years and be in the same position as in today”. Mr. Brouwer indicated “this was the way he was going to do business and if I didn’t like it, there was the door”. Mr. Combe said “he didn’t like it”. Mr. Brouwer said “if that’s the way you feel I accept your resignation immediately”. Mr. Combe said “I felt that he had been lying to me all these years”. Mr. Combe admitted he was angry. When he said that Mr. Brouwer had been lying, Mr. Brouwer got angry and pointed to the door indicating several times in a loud voice “get out”. Mr. Combe left the office and punched out. He indicated to Mr. Brouwer’s son “Nice working with you” and left. According to Mr. Combe, Mr. Brouwer followed him to the door. The next day Mr. Combe returned to deliver the letter (see paragraph 10) and pick up some personal belongings.

14. Mr. Combe testified that he never said he wanted to quit and certainly had no intention of quitting. He further testified after delivering the letter dated August 1, 2000 he was never contacted by the employer. Mr. Combe testified that he had no other job lined up at the time and in fact has been unemployed since leaving this employer.

15. There is no evidence that Mr. Brouwer even attempted to retain Mr. Combe after July 30, 2000. The record of employment sent to Mr. Combe indicates that he quit.

16. Based on the evidence heard, it is obvious that there was not a good working relationship between Mr. Combe and Mr. Brouwer. In fact, all witnesses called on behalf of either party agreed that employee morale was very bad.

17. Mr. Combe was obviously upset at not being given the four colour pressman position. On the other hand it was clear that Mr. Brouwer felt that Mr. Combe was not a cooperative employee. This is the background of the meeting held on July 31, 2000. There is no question in my view that both parties were upset at the meeting and in the heat of the moment both sides became exercised. However, I am satisfied that Mr. Combe never intended to resign, and that Mr. Brouwer was only too happy to accept what he felt was a resignation. It is telling when pressman are hard to find that Mr. Brouwer made no attempt to retain Mr. Combe. Even when Mr. Combe notified Mr. Brouwer on the next day that in his view, he has been fired, Mr. Brouwer makes no attempt to rectify the situation.

18. A was stated in 849057 Ontario Ltd. o/a Roy’s Enterprise, Board File No. 1292-99-ES, at paragraph 19 and 20:

19. … The act of resignation, or quitting, is an act solely within the employee’s control. It requires a conscious decision and action on the part of the employee. It is not possible for a third party, be it an employer or this Board, to “deem” her to have quit when she did not make that decision herself.

20. It is trite law that a decision to quit requires two elements. First, the employee must make a decision to quit (the “subjective element”). Second, the employee must take some active step to sever the employment relationship (the “objective element”). Arbitrators dealing with similar allegations in discharge grievances filed under a collective agreement are virtually unanimous on this point. As stated in Canada Packers Inc., (1984) 1984 CanLII 5274 (ON LA), 17 LAC (3d) 1 (Rayner) at p. 5:

There is considerable arbitral jurisprudence that focuses on the question of whether an employee resigned or was fired.

Perhaps the seminal case in this line of jurisprudence is Re Anchor Cap & Closure Corp. of Canada, Ltd. and U.E.W. Local 512 (1949), 1 L.A.C. 222 (Finkelman). At p. 223 the arbitrator stated:

“The act of quitting a job has in it a subjective as well as an objective element. An employee who wishes to leave the employ of the Company must first resolve to do so and he must then do something to carry his resolution into effect. That something may consist of notice, as specifically provided for in the Collective Agreement or it may consist of conduct, such as taking another job, inconsistent with his remaining in the employ of the Company.”

The cases flowing from this initial characterization are legion and many have been reviewed in Re Metropolitan Toronto Board of Com’rs of Police and Metropolitan Toronto Police Assoc. (1978), 1978 CanLII 3406 (ON LA), 18 L.A.C. (2d) 7 (Adams). At p. 13 the arbitrator stated:

“The first category of cases establishes the principle that while an employee may voluntarily quit his employment, he must form the subjective intent to do so. While an employer may infer that he has quit from his conduct, it cannot “deem” that he has quit, over his objections. The second category of cases establishes that there need to be confirming objective conduct and that this conduct must be of a continuing nature”.

This analysis has been adopted in at least two decisions under this Act: Re Grimsby Packaging Ltd. [1991] OSEAD 64, Decision 2881 (Dissanayake) and Creative Hair Design (Board File 3382-98-ES, Feb. 23, 2000, Albertyn).

19. It this instance, even if one was to accept Mr. Brouwer’s evidence, it is the employer who forced the alleged “resignation” to be “effective immediately”. Resignation is an act solely within the employee’s control. In this instance in any event I am satisfied that Mr. Combe did not quit. He was upset but in my view he never intended to sever the employment relationship. Thus in my view Mr. Combe is entitled to severance pay.

DISPOSITION

20. In the result, I therefore uphold Order to Pay No. 58199.

“Timothy W. Sargeant”

for the Board