IN THE MATTER of the Unemployment Insurance Act
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IN THE MATTER of a claim for benefit by
JEAN FREWER
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IN THE MATTER of an appeal by the claimant to an Umpire
from a decision by the Board of Referees given at
Toronto, Ontario, on December 13, 1993.
DECISION ON THE RECORD
THE HONOURABLE W.J. HADDAD, Q.C., UMPIRE:
The Claimant appeals a decision by a Board of Referees affirming a ruling of the Commission that she voluntarily left her employment within just cause.
The facts disclose that the Claimant submitted a letter of resignation to her employer. Her contention is that she did so "with JUST CAUSE DUE TO MENTAL HARASSMENT, and antagonistic relations between an employee and a supervisor, for which the employee is not primarily responsible. " She also says she was wrongfully dismissed for the reason she was not allowed to "work out my resignation as tendered."
I have some difficulty with the decision rendered by the Board of Referees. The Board gave an account of evidence propounded by the Claimant and by the employer without finding firm facts to resolve conflicts. The Board concluded the Claimant left her job without just cause on the basis of this comment:
"that there is no evidence that Mrs. Frewer took any care to protect her job as required under the Unemployment Insurance Act".
I am not certain as to the significance of that statement.
I deliberated as to whether I ought to refer the matter back to a Board of Referees for a rehearing and decided against that course due to the time already elapsed since the date of the Board's decision.
Invoking the jurisdiction given to me pursuant to the Unemployment Insurance Act, section 81 I intend to review the evidence and make findings and reach a conclusion I deem appropriate.
Central Park Lodges operated a chain of retirement and nursing homes across Canada. The Claimant was employed at a retirement home located at 14 X, * in the capacities of office coordinator, bookkeeper and a member of the Management Team.
At the beginning of July 1993 members of the Management Team were informed that the general manager of no. 14 was being transferred to another location and would be succeeded by Pearl Lemdal, then general manager of no. 10 X, * who would become general manager of both numbers 10 and 14.
The file does not disclose the exact date Mrs. Lemdal commenced her duties as general manager of no. 14. The best reference I was able to find is that she officially took over about the middle of August, 1993.
The Claimant expressed complaints regarding Mrs. Lemdal's management style and those complaints are several in number. Before Mrs. Lemdal assumed her duties she visited no. 14 to check around and Claimant alleges that in the course of those visits Mrs. Lemdal made derogatory and snide remarks about her to other members of the staff.
Claimant also contends that on September 2, Mrs. Lemdal told her she had received complaints about the Claimant's handling of the staff and she disliked the Claimant's procedure for handling phone calls. Claimant says she was not given an opportunity to offer an explanation in her own defence.
At Mrs. Lemdal's first meeting with the Management Team, Mrs. Lemdal, according to the Claimant, stated "there is only one way to do things - my way - if you are not happy with that, the door is always open - outwards". Mrs. Lemdal denies having made that remark.
In early September Claimant left for a two-week holiday and upon her return home on September 20, 1993 she found a message requesting that she phone the Lodge immediately regarding a task Claimant had performed for Mrs. Lemdal before she left on vacation. Claimant did not call that day as it was the last day of her holiday period. She waited to see Mrs. Lemdal upon her return to work the following day, September 21.
Upon Claimant's arrival at her office she found the plaque on her door describing her job description of "Office Co-ordinator" had been replaced by a new plaque with the title "Bookkeeper".
When Claimant and Mrs. Lemdal met that day Claimant was criticized regarding her job performance. This additional criticism prompted the Claimant to verbally announce her resignation. Mrs. Lemdal demanded that Claimant tender her resignation in writing. I consider that tantamount to saying the resignation verbally announced would not be accepted.
Claimant prepared a letter of resignation dated September 21, 1993, making her resignation effective October 1, 1993 and same was submitted to Mrs. Lemdal on September 23, 1993. Claimant explained in her letter that her last day of work would be September 28 because of "3 lieu days she had coming to her." Upon receipt of Claimant's letter of resignation Mrs. Lemdal reacted by entering Claimant's office at 11:00 a.m. to demand that she leave immediately. According to the Claimant Mrs. Lemdal used the words, "I want you out of here. Now, Right Now" and she was escorted off the premises in humiliation. That description may be somewhat harsh. Fortunately, arrangements were then made to assist her with a ride home after she gathered up her personal belongings.
Mrs. Lemdal's version is that she requested Claimant to leave immediately as it would be in everyone's best interests for her to do so. Claimant refuses to acknowledge that she was asked to leave for that reason.
In any event, I am satisfied that Mrs. Lemdal's reaction was swift and that the Claimant was hastily removed without consultation and without regard to her personal feelings.
As of January, 1994, which represents the date of the letter giving notice of this appeal, the salary payment Claimant received was short by two days.
As I review the file I accept Claimant's credibility as to her version of events.
In my view, the question arises as to whether the resignation was accepted as offered.
Although Claimant initiated severance of the relationship she was prevented from fully completing the term of her employment. She did not voluntarily leave on September 23, 1993. Instead her intention to continue working until September 18, 1993 was effectively terminated that day.
Counsel for the Claimant in her submission cites the decision of Umpire Martin in the claim of Ireland, CUB 13930, who dealt with a resignation that was conditional and the conditions attached to the resignation were not met by the employer. He reasoned:
"In my view a conditional resignation is not a resignation which can be accepted unless, at the same time, the conditions are accepted as well. The corporation was not entitled to accept the Claimant's resignation and reject the conditions. When it purported to do so and instructed the claimant to vacate his office it terminated the claimant's employment by means of a dismissal. While the claimant's conditional letter of resignation may have initiated the events which resulted in his loss of employment, it cannot be said, under the circumstances of this case, that he voluntarily left his employment."
Claimant's counsel also refers to the case of Oxman v. Dustbane Enterprises Ltd. (1989), 23 C.C.E.L. 157. In that case the Court of Appeal of Ontario held that " if (an employee's) offer of resignation is not accepted as offered --- its acceptance is not binding on the employee and does not terminate the employment."
Notwithstanding that Claimant's letter of resignation may have initiated the events that followed, the conditions of her letter were not met by her employer. The first condition is that her resignation be effective October 1, 1993, and secondly, that her "last day at the office will be Tuesday, September 28, 1993". The employer did not pay her salary to October 1, but more important the employer did not meet the condition of Claimant's resignation by permitting her to remain in her office until September 28. She was summarily dismissed on September 23.
In the circumstances I conclude that the actions of the employer resulted in a dismissal on September 23. She did not voluntarily leave her employment that day without just cause.
I will also address the antagonistic ground upon which Claimant also relies. I believe there is merit as well in this ground of appeal. In my view, Mrs. Lemdal's antagonism is manifest in her conduct and in particular, in her criticism of the Claimant and the antagonism became evident in the manner in which she reacted upon receiving Claimant's resignation. Responsibility for the antagonism cannot be attributed to the Claimant.
Having regard to all the circumstances I have examined I allow the appeal and rescind the decision of the Board of Referees.
"W.J. Haddad"
W.J. Haddad, Q.C. - Umpire
Dated at Edmonton, Alberta
February 2nd, 1995