Date: 20040818
Docket: T-1482-02
Citation: 2004 FC 1146
BETWEEN:
H & R TRANSPORT LTD.
Applicant
and
BRENDA BALDREY
Respondent
[1] In this case the respondent employee stated her intention to quit and was later terminated by her employer. The present application is for judicial review of the decision of an adjudicator (the "Adjudicator") dated June 13, 2001 (the "Decision") which was made pursuant to Division XIV - Part III of the Canada Labour Code, R.S., c. L-1, s. 1. In the Decision the Adjudicator found that the respondent, Brenda Baldrey (the "Employee") had been unjustly dismissed. The Decision dealt only with the issue of liability. It followed hearings held on April 20 and June 7, 2001 at which the Employee was self-represented.
[2] Two months later, the Adjudicator made a damage award dated August 15, 2002. Although mentioned in the application for judicial review, the damage award was not before me because the parties agreed that the payment of damages would depend on the outcome of this application for judicial review.
The Facts
[3] The applicant, H & R Transport Ltd. (the "Employer"), is a trucking company for whom the Employee worked for six years as a Customer Service Representative in the United States shipping department. The evidence was that she was a "model employee".
[4] However, on Friday, January 28, 2000 at approximately 4:00 pm, she attended a meeting of the members of her department (the "Meeting") and, shortly after the Meeting began, she announced that she "quit" and that she "couldn't take it anymore" and she then left the Meeting (the "Incident"). Her supervisor, Mark Fodor (the "Supervisor"), followed her out the room and asked her to return to the Meeting but she declined.
[5] The evidence about the Employee's post-Incident conduct shows that:
(i) after refusing to return to the Meeting, she left the Employer's premises without clearing out her desk or returning her keys;
(ii) she tried to see her Doctor late on Friday afternoon but he was not available;
(iii) she did not contact her Employer or seek medical help over the weekend;
(iv) she did not return to work on Monday, January 31, 2000 and made no effort to contact her Employer. However, she did see her Doctor and obtained a note dated January 31, 2000 excusing her from work (the "Note"). It read:
Please excuse Brenda from work from Jan 28/00 due to medical reasons until March 1/00.
(v) she did not return to work on Tuesday, February 1, 2000 and made no effort to contact her Employer to explain her situation;
(vi) on Wednesday, February 2, 2000 at 7:15 a.m., she called her Employer and told her Supervisor that she had the Note and that she would have it delivered to the Employer that day. During the telephone conversation, she also asked her Employer to prepare a record of employment ("ROE") which she said she needed in order to apply for sickness benefits;
(vii) later that day, the Employee's partner delivered the Note and picked up the ROE which said that she had "abandoned her position";
(viii) the Employee did not complain about the statement that she had abandoned her position;
(ix) two weeks after the Incident, the Employee received a final pay cheque which included her accumulated vacation pay. However, she did not complain to her Employer about her apparent termination.
The Issues
[6] The Employer says that:
1. the Decision was patently unreasonable because the Adjudicator considered the Employer's conduct following the Incident when he should have focussed only on the Employee's conduct;
2. the Adjudicator erred when he concluded that the Employee's evidence about the events before the Meeting was not accurate but that her post-Incident evidence was reliable;
3. the Adjudicator's conclusion that, due to her fragile emotional state, the Employee had not noticed the comment on the ROE which indicated that she had "abandoned" her employment was patently unreasonable because it was not supported by any evidence; and,
4. the Adjudicator erred by ignoring the implications of the Employee's failure to complain to the Employer about her termination when she received her cheque for vacation pay.
Discussion
Issue 1
[7] The parties agree that the Employee bore the onus of proving, on a balance of probabilities, that she had not resigned but had been dismissed. However, the parties do not agree about what constitutes relevant evidence. The Employer relies on the following passage from Brown and Beatty, Canadian Labour Arbitration (3rd ed.), § 7:7100 [TAB 6] at p. 7-290:
Generally, where the employee has expressed an intention to quit, it appears from the reported awards that only where the circumstances surrounding the initial expression of her intention are inconsistent with a subjective intention of quitting, or alternatively where there is some subsequent conduct on the part of the employee which was in fact inconsistent with the expressed intent, has it been held that the expression of the employee manifested some intention other than quitting.
[my emphasis]
[8] Counsel for the Employer says that the Adjudicator erred in law when he included an assessment of the Employer's conduct in his analysis. The only relevant evidence, he submits, is that which concerns the behaviour of the Employee.
[9] The Employer submits that the Adjudicator's error is evident at page 21 of his Decision when he said:
For all the stated reasons, I believe that an objective observer would determine that Baldrey believed that she was still employed by H & R and that she was acting in furtherance of her doctor's prescription for sick leave. An objective observer would conclude that H & R had agreed to accommodate her.
[10] However, the Adjudicator stated at page 19 of the Decision that:
In the result, I conclude that at the time that Baldrey tendered her resignation, she was emotionally overwrought due to illness and that, accordingly, it is doubtful that a genuine intention to sever the employment relationship was expressed. Only if Baldrey's subsequent objective conduct bore out her stated intention would I be persuaded that she had effectively resigned her position. The question, then, is whether the events of the two week period following the statement of resignation when objectively viewed, supports Baldrey's resignation.
In this passage, the Adjudicator correctly defined the focus of his inquiry as an objective view of the Employee's post-Incident conduct. However, in spite of this statement, he expanded his inquiry to consider the conduct of both the Employer and the Employee.
[11] An examination of the Employee's post-Incident conduct to the end of Tuesday, February 1, 2000, reveals that, from the Employer's perspective, all her conduct was consistent with her expressed intention to resign. She had said she was quitting on a Friday afternoon and by 5:00 pm on the following Tuesday, she had neither returned to work nor contacted her Employer.
[12] However, if one takes an objective view, one notes that, if the Employee had had a subjective intention to resign, she would not have asked her Doctor for the Note. If she had really intended to quit, there would have been no need to prepare to explain her absence to her Employer. The Note was written in terms that suggest that she told her Doctor that her employment continued and that she needed sick leave. Accordingly, it is my view that, by Monday afternoon, an objective observer would have concluded, based on her conduct alone, that she had not intended to resign at the Meeting the previous Friday.
[13] On Wednesday, February 2, 2000, she told her Employer about the Note and had her partner deliver it to her Employer. In my view, employees who have quit do not present their employers with medical notes prescribing sick leave.
[14] It is my conclusion that, by the Wednesday morning, it was clear from the viewpoint of both an objective observer and the Employer that, when the Employee quit at the Meeting on the previous Friday afternoon, she had not expressed a genuine intention to sever her employment relationship with the Employer.
[15] When the Employee's partner delivered the Note on Wednesday afternoon, February 2, he picked up the ROE that the Employee had requested in her earlier conversation with her Supervisor. On the ROE form, the Employer had a choice of reasons to give for issuing the form. It could have inserted the item coded "E" which would have indicated that the Employee quit. The Employer could also have written "N" for "leave of absence". Instead, the code letter "K" was used. It means "other" and, when it is used, the form indicates that the reason for issuing the ROE is to be explained in the ROE's comment box. It was in that box that the Employer wrote "abandon position" (the "Comment"). The evidence did not indicate whether the Employee saw the Comment. In the absence of such evidence, no inference can be drawn about the Employee's failure to call her Employer to complain about this characterization of her behaviour.
[16] On the facts of this case, I cannot conclude that the Adjudicator made a material error when he considered the Employer's conduct as well as that of the Employee. I say this because, as demonstrated above, had the Adjudicator reviewed the Employee's conduct alone, the result would have been the same - a conclusion that her post-Incident conduct, when objectively viewed, did not support a genuine intention to resign at the Meeting.
Issue II
[17] The Adjudicator did not accept the Employee's allegations about the mistreatment which she said she had received at the hands of her Supervisor, both in the days leading up to the Meeting and at the Meeting. These findings were reasonable in that her evidence about these events was contradicted by virtually every other witness. However, the Adjudicator accepted her testimony about events after the Meeting, largely because it was corroborated by other evidence. I can find no reviewable error in this approach.
Issue III
[18] The Adjudicator suggested two explanations for the Employee's failure to react to the Comment. He said that, due to her emotional state, she might have overlooked it. This, says the Employer, was not supported by the evidence. In the alternative, the Adjudicator concluded that, if the Employee saw the Comment, she did not call her Supervisor because she had been assured that she would be employed through her sick leave by his statement earlier that day (which he testified he did make) that she should take whatever time she needed.
[19] Although I agree with the Employer that there was no factual basis for the finding that the Employee's emotional state explained her failure to react to the Comment, I am satisfied that this error was immaterial because the alternative finding based on the Supervisor's assurance was reasonable.
Issue IV
[20] Two weeks after the Incident, when the Employee received a cheque with vacation pay, her immediate reaction was to contact her Employer. However, she did not contact the office to speak to her Supervisor to complain that her sick leave had been cancelled. Rather, she asked to speak to the payroll clerk to debate the amount of vacation pay to which she was entitled. The Employer says that her failure to complain to her Supervisor about being sent the cheque is objective conduct which confirms her intention to resign. The Employer's submission, on this point, has some validity. It is odd that, if she thought her sick leave had been cancelled, she did not ask to speak to her Supervisor to obtain an explanation.
[21] In other circumstances, this conduct might have suggested that she had intended to resign. However, immediately after talking to the Employer's payroll department, she called Federal Labour Relations to allege that she had been unjustly dismissed. This was timely and Page:
Page:
unequivocal conduct which was inconsistent with the expression of a genuine intention to resign at the Meeting and which, in my view, negates any negative inferences which might otherwise have been drawn based on her failure to speak to her Supervisor.
Conclusion
[22] For these reasons, I am not satisfied that the Adjudicator's Decision was patently unreasonable. Accordingly, the application for judicial review will be dismissed.
Sandra J. Simpson
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1482-02
STYLE OF CAUSE: H & R TRANSPORT LTD. v. BRENDA BALDREY
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: August 27, 2003
REASONS FOR : Reasons for Order
APPEARANCES:
Mr. William J. Armstrong, Q.C. FOR APPLICANT
Mr. Kenneth G. Torry, Q.C. FOR RESPONDENT
SOLICITORS OF RECORD:
LAIRD ARMSTRONG FOR APPLICANT
Calgary, Alberta
Mr. Ken H. Lewis, Q.C. FOR RESPONDENT
TORRY LEWIS ABELLS, LLP
Lethbridge, Alberta