3138-00-ES Joan Bates Insurance Inc., Applicant v. Melanie Labrie and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 42003496

BEFORE: Stephen Raymond, Vice-Chair.

APPEARANCES: Curtis Marshall for the applicant; Melanie Labrie and Gary Cover for the responding party; L. Eisenberg for the Ministry of Labour.

DECISION OF THE BOARD; June 27, 2001

1This is an employer appeal under section 68 of the Employment Standards Act, R.S.O. 1990, c.E-14, as amended (the “Act”) of Order to Pay No. 58842, in the amount of $697.60, in respect of Ms. Melanie Labrie (“Ms. Labrie”). The employer, Joan Bates Insurance Inc. (“Joan Bates”) takes the position that the Officer, Ms. Cheryl Armstrong (“the Officer”) erred in awarding termination pay under the Act because Ms. Lebrie resigned from her employment and was not terminated.

2A hearing was held on June 15, 2001.

The Issue

3The issue in this case is whether Ms. Lebrie, upon providing her resignation of employment with two weeks notice had her employment terminated by Joan Bates.

The Evidence

4Mr. Curtis Marshall (“Mr. Marshall”), the owner of Joan Bates testified. Ms. Labrie and Mr. Marshall were the two persons who worked at Joan Bates. Mr. Marshall was the insurance broker and owner of Joan Bates while Ms. Labrie provided administrative support. Subsequently, Ms. Labrie obtained a brokers licence at the expense of Joan Bates. On April 17, 2000, Ms. Labrie resigned. She left a letter on Mr. Marshall’s Desk. The letter said:

Dear Mr. Marshall:

This letter is to inform you that I will be leaving the employ of Joan Bates Insurance Company as of May 1, 2000.

Please forward all correspondence and income due me to the following address:

Melanie Labrie

Box 101

Dundalk, Ontario

N0C 1BO

I would like to take this opportunity to thank you for the years of employ that you have given me. The experience that I have received will be of great value to me in my future endeavors.

Yours truly,

“Melanie Labrie”

Melanie Labrie

5Mr. Marshall indicated that Ms. Labrie left the office that morning and did not return. He said that he did not holler at her and did not terminate her employment. He did indicate in cross-examination that he had a conversation with Ms. Labrie which ended with him telling Ms. Lebrie to “go”. He indicated that by stating “go” he was telling Ms. Labrie to return to work. Mr. Marshall indicated that he would not have terminated Ms. Labrie because (1) that would leave him without administrative assistance, (2) he had paid for her insurance brokers licence six months prior, and (3) he attempted to contact Ms. Labrie the next day to return to work.

6Ms. Labrie testified. She indicated that she placed the letter of resignation on Mr. Marshall’s desk and went to work. She said that he came to her office and started to holler at her that she had to provide six months notice. She indicated that two weeks was the legal obligation. At one point she indicated that Mr. Marshall said “why not leave now?” At that point, she gathered her personal belongings and left.

Decision

7Ms. Labrie is entitled to termination pay pursuant to section 57 of the Act if her employment was terminated by her employer. The fact that she had resigned with notice does not disentitle her to the protection of the Act if she is subsequently terminated.

8Accordingly, my decision is to determine whether Ms. Labrie was terminated. Regardless of whether I believe Mr. Marshall or Ms. Labrie as to what occurred between them, I am satisfied that Mr. Marshall terminated Ms. Labrie’s employment. Mr. Marshall and Ms. Labrie disagree as to what happened between them on that day. Assuming without finding that Mr. Marshall is accurate as to what occurred, I would find, even on his evidence, that he terminated the employment of Ms. Labrie. When an employee resigns and is approached by her supervisor and instructed to “go”, a reasonable person would conclude that the employer is terminating the employment relationship. When the employee picks up her personal belongings and is not met by some action of the employer stating that there has been a misunderstanding, this is more evidence that a termination of employment has occurred. The fact that the employer on the next day reconsiders and decides to invite the employee to return to work does not change the fact that the employment relationship has been terminated.

Disposition

9The application is dismissed.

10Accordingly, I order as follows:

(a) that the wages paid to the Director in trust in relation to this matter in the amount of $597.60 be disbursed to Ms. Labrie along with any interest accrued on this amount.

(b) that the administration fee as set out in the Order to Pay be retained by the Government of Ontario Consolidated Revenue Fund.

“Stephen Raymond”

for the Board