0412-01-ES Elora Mill Ltd., Applicant v. Randy Landry and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 61005344

BEFORE: Laura Trachuk, Vice-Chair.

APPEARANCES: Daniel Fogel, Nicole Martin and Jennifer Smith for the applicant; no one appeared for the employee; Wes Wilson for the Ministry of Labour.

DECISION OF THE BOARD; September 28, 2001

1This is an employer application under section 68 of the Employment Standards Act, R.S.O. 1990, C.E.-14, as amended (the “Act”) for review of Order to Pay no 58270. The Employment Standards Officer found that the applicant had terminated the employment of Randy Landry without notice or termination pay in lieu of notice. The applicant (referred to as the “company”) claims he resigned.

2Mr. Landry did not attend the hearing. He sent no written communication at any time to the Board. However, counsel for the Ministry of Labour indicated that he had spoken to Mr. Landry and that he was conveying his request for an adjournment. He advised that Mr. Landry was working on a ship and was currently unable to attend the hearing. He said that Mr. Landry had contacted the parties to ask if they would consent to the adjournment and that the applicant had refused. The applicant continued to refuse to consent to the adjournment at the hearing. In view of Mr. Landry’s failure to even communicate his request in writing to the Board, and in the absence of consent from the other parties, the Board denied the adjournment request.

Facts

3From the material in the file it appears that there is not much dispute about the relevant facts in any case. Mr. Landry starting working for the company in September 1995. He started as sous chef and was subsequently promoted to chef. In 1997 he was asked if he would also like to take on the additional responsibilities of property manager and he agreed. The property manager position had previously been a separate position although at some period before Mr. Landry started with the company it had been held by the dining room manager. It appears that Mr. Landry was a hardworking and valued employee although he had exhibited some dissatisfaction with his job in the months preceding his departure. On April 21, 2000 he gave the following letter to the Innkeeper, Jennifer Smith:

It is with some regret, that I must inform you of my wishes and need, due to personal reasons, to resign my position as Property Manager of the Elora Mill. Reasons being as follows: My marriage is the most important thing in my life, and for some time now my job has become that. I believe it to be near impossible to effectively manage two departments while physically working those positions at the same time. There are far too many other important tasks to deal with to allow those departments to operate effectively. By doing both, there is not enough hours in a day to accomplish what needs to be done, thus causing time away from what means the most to me, that being my marriage and personal life.

I would like to remain as Chef of the Elora Mill, providing it is agreed upon by both of yourselves, and to continue to give our guests a Fine Dining experience. Although, it is going to require an investment in updating a kitchen that needs attention in areas, to be able to stay on top of a demanding market in the hospitality industry. I would be willing to discuss those areas at a later date, if you so wish. I would hope that you understand my position in this matter, and that we can discuss it at your earliest convenience.

4After leaving the letter for Ms. Smith, Mr. Landry continued to attend at the workplace and perform his chef’s duties although he apparently was not performing at least some of his duties as property manager. On May 4, 2000 he was asked to attend a meeting with the applicant’s owner Patrick Lett and Ms. Smith. Ms. Smith testified that he was asked to meet with them in a separate building as it was expected that he would be upset and they wanted to avoid a scene in front of the staff. He was advised that he could not resign half of his position and that the applicant was therefore accepting his resignation of his position effective immediately. He was not advised by Mr. Lett and Ms. Smith that he could continue to work for the applicant providing he continued to fulfil all of his duties. On the other hand he did not tell Mr. Lett and Ms. Smith that he would stay in his position as property manager and chef if they would not agree to let him work only as chef. After being told that his resignation of the whole position was effective immediately he went and removed his personal belongings from his office. He also returned his float to the safe which is apparently something employees only do when they leave permanently.

5The next day however, Mr. Landry returned to the workplace, put on his chef’s whites and commenced to work in the kitchen. When Ms. Smith saw him she did not speak to him but called the human resource manager Nicole Martin. She also called the police. Ms. Martin arrived shortly before the police. She called Mr. Landry out of the kitchen and asked the police to escort him off the premises. He insisted that he still had a job as chef. He demanded a letter explaining the reasons for his termination. Ms. Martin finally provided him a letter which stated as follows:

As your letter of resignation does not stipulate an effective date, we have assumed and accepted your resignation effective immediately.

Your terms, conditions and salary when additional responsibilities were added, state the job description is Property Manager/Chef.

You have asked Patrick and Jennifer to consider keeping you on as Chef, which represents your knowledge of your job consisting of both components, not one. Also, by clearing off your desk, removing cook books, and returning the kitchen float would suggest your knowledge of your position consisting of both Chef and Property Manager.

Due to the circumstances surrounding your departure, you will no longer be welcome on the property.

6After Mr. Landry received the letter he left the premises. Again, at no time did anyone tell Mr. Landry he could stay if he agreed to perform all of his old duties and Mr. Landry never offered to perform his old duties. He also did not indicate that he wished his resignation to be effective at a later date. There was no further contact between Mr. Landry and the applicant until this application was filed.

Decision

7The parties agree that the determination of whether Mr. Landry resigned must be based on his intention plus some objective action. However, they disagree as to whether his intention was to resign as an employee. The applicant says that the letter indicates that Mr. Landry believes it is impossible to do both positions, that he cannot resign from part of a position, and that he never said he was prepared to stay on in both positions. The Ministry of Labour says that Mr. Landry believed, not unreasonably, that he held two positions and that he could resign from one of them. He never indicated an intention to resign his chef position or to cease being an employee of the applicant. The Ministry argues that the applicant decided that Mr. Landry’s employment was over before it met with him on May 4, 2000 and that there was no negotiation.

8The Board finds that Mr. Landry was terminated from his employment with the applicant and is therefore entitled to termination and severance pay. He did indicate his intention to resign from a position but not to end his employment. While it is possible that he would have resigned from all employment at the end of a discussion about his options, the parties never reached that point. Mr. Landry said he only wanted to do one of his two jobs, or from the applicant’s viewpoint, part of his job, but he did not quit his whole job. He cleared out his office but that was after he was told his resignation was accepted immediately. He then went to work the next day anyway. It is clear that Mr. Landry believed that he would still have a job as a chef and did not expect to stop working for the applicant completely. He certainly never indicated that he expected to stop working immediately and by insisting that he leave immediately the applicant dismissed him.

Disposition

9For the reasons stated above, Order to Pay no. 58270 is hereby affirmed and the monies held by the Director in trust should be paid out to the claimant.

“Laura Trachuk”

for the Board