Angry worker didn’t have intent to quit: Board

Argument with owner led to employee leaving work and going on stress leave
|Canadian Employment Law Today|Last Updated: 01/21/2014

An Ontario employer has been ordered to fork over termination pay after assuming a worker quit her job following an argument with her boss.

Rita Oomen worked for Oomen’s Glass, a supplier of glass products such as windows and mirrors to residential and commercial customers in Kingston, Ont. The company was owned by her cousin, Joe Oomen, and Rita began her employment there on Dec. 11, 2006.

While employed with her cousin’s company, Rita Oomen had personal problems to deal with, including health issues and difficulties in her relationship. These problems led to errors that cost Oomen’s Glass both money and goodwill with its customers.

Joe Oomen discussed these problems and their effects on the business with Rita, but he chose to continue employing her because she was family. Joe later testified any other employee with similar performance issues would have been terminated earlier.

On March 14, 2012, Rita called Joe on the phone. They started to have a heated argument in which they yelled at each other. Two other employees who were in the office overheard the argument and testified that, after Rita hung up, she said she was going to quit. One co-worker told her she should take a leave of absence “due to stress” rather than quit, while the other thought she said she did quit. Neither co-worker was Rita’s superior or had any role in the termination process.

As it was near the end of the workday, Rita packed up her belongings and performed her regular closing duties after the other employees left — duties which included locking the office, putting cash in the safe and transferring the phone to an answering service.

The next day, Rita emailed one of her co-workers with a request to give an attached doctor’s note to Joe. The doctor’s note indicated Rita was absent from work due to medical reasons and would be assessed on March 27. The note also stated she would drop off her keys and company cellphone the next day.

After her assessment on March 27, Rita’s doctor provided a medical certificate that stated she was on a “stress related medical leave.” Rita then applied for employment insurance benefits.

Joe assumed Rita had quit her job and Oomen’s Glass issued her a record of employment with the comment that Rita was told she wouldn’t be coming back to work due to “personal problems causing errors in her work.”

Rita filed a claim for termination pay with the Ontario Employment Standards Branch, claiming Oomen’s Glass had terminated her employment. An employment standards officer agreed with her and ordered the company to pay her $3.149.22 in termination and vacation pay.

Oomen’s Glass appealed to the Ontario Labour Relations Board, claiming Rita Oomen had quit, thereby terminating the employment relationship and making her ineligible for termination pay.

The board noted there were two things to be considered when determining if an employee has quit: a subjective intent to quit and if the employee’s actions manifested that intent.

The board found that regardless of whether she told her co-workers she was going to quit, there was no dispute that she never told Joe Oomen — her actual boss — that she quit. Her state of mind immediately following the argument on the phone was likely emotional and not clear-thinking, nor was it a communication to the employer of her intent to quit, said the board.

The board also found Rita’s actions indicated her intent to continue the employment relationship. She continued to work and completed her regular closing duties that day. She also sent a medical note for a leave of absence the next day, which indicated she wanted to remain an employee.

“In addition to performing her regular closing duties (which suggests that she intended to continue with her duties
after her statements to her co-workers), the medical note provided the following day indicates an intention for a leave of absence,” said the board. “This suggests that she was not trying to sever the employment relationship.”

The board also determined that Rita’s return of her keys and cellphone indicated she didn’t want to keep company property while on a leave of absence rather than a belief she had quit.

The board agreed with the original ruling that Oomen’s Glass terminated the employment relationship and upheld the order to pay Rita Oomen termination pay.

See M. Oomen’s Glass Ltd. v. Oomen, 2013 CarswellOnt 17083 (Ont. Lab. Rel. Bd.).