In the Matter of a Complaint of Alleged Unjust dismissal under Part III of the Canada labour Code
Peter Jansen, Complainant and Pacific Central Carriers Ltd., Respondent
Heard: September 2, 2008
Judgment: October 21, 2008
Docket: YM2707-7769
Counsel: Mr. Peter Jansen, for himself; Ms. Churchwell for the Employer
I.S. Petersen Adjudicator:
1 On July 4, 2008, the Minister of Labour appointed me to hear Mr. Jansen’s complaint of alleged unjust dismissal against Pacific Central Carriers Ltd. By consent I convened a hearing in Vancouver on September 2, 2008.
2 The parties raised no issue with respect to my jurisdiction.
Issue
3 There are essentially two issues before me in this complaint: first, whether Mr. Jansen quit or was terminated from his employment, and second, if he did not quit, and was terminated by the employer, what are the appropriate remedies in all of the circumstances.
4 The evidence at the hearing related to the first issue, and the parties agreed that I would reconvene the hearing to deal with remedies should I find in favour of Mr. Jansen.
Facts
5 There is some conflict in the evidence with respect to the details of the circumstances that ultimately resulted in Mr. Jansen’s employment with Pacific coming to an end on November 16, 2007.
6 Where there is conflict in the evidence, I resolve those with reference to the oft-quoted test in the BC Court of Appeal’s decision in Faryna v. Chorny (1951), 4 W.W.R. (N.S.) 171 (B.C. C.A.), where Mr. Justice O’Halloran said:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carries conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing condition. In short, the real test of the truth to the story of a witness in such a case must be its harmony with the preponderance of probability which a practical and informed person would readily recognize as reasonable in that place and in those conditions…
7 Pacific is a trucking firm specializing in transport of heavy equipment, operating out of Abbotsford, British Columbia. Mr. Jansen worked as a truck driver for Pacific since September 2000, and that his employment came to an end on November 16, 2007.
8 Mr. Jansen testified at some length and detail about the difficulties he had had with the dispatcher over the previous years, starting after the dispatcher assumed his position. On one occasion the dispatcher complained to him that “every time you go out, you fuck something up.” This was in reference to a blown tire. Mr. Jansen explained that the dispatcher on one occasion had threatened to “punch out [his] lights.” His complaints to the owner had not met with a sympathetic response. The owner told him that the dispatcher had the “green light to punch out his lights if he mouthed off” to the dispatcher. While the owner subsequently apologized for his comments, Mr. Jansen testified that he was given less work for a time. His poor relationship with the dispatcher lasted for the duration of his employment with Pacific.
9 Ms. Churchwell, the employer’s general manager, testified on behalf of Pacific. She explained that Mr. Jansen returned to the employer’s yard on November 9, 2007, from a trip to Seattle, Washington. He was told to take the equipment, he had loaded in Seattle, to Calgary, Alberta the week of November 12. He was to unload the equipment in Calgary and drive empty to Paris, Ontario, load equipment on Monday, November 19, and transport it to a BC destination, Prince George. The Paris, Ontario manufacturer is an important customer for the employer and, Ms. Churchwell explained, is notorious for delays such that the equipment to be transported if frequently late by one to three days. Mr. Jansen told the dispatcher that he had to be at home in the lower mainland on November 11 for Remembrance Day as his father had fought in the war. The dispatcher agreed, and Mr. Jansen accepted the trip.
10 On November 14, Mr. Jansen unloaded the machine and cleared Calgary. He called the employer and informed the dispatcher, who told him that there was a delay and the equipment from Paris, Ontario, was not ready for pickup until one day later than scheduled, until November 20.
11 While Ms. Churchwell was not a party to the conversation, she said she was in the office, and was sitting close to the dispatcher and, therefore, could hear the conversation. According to Ms. Churchwell, Mr. Jansen told the dispatcher that the delay “did not work for him” as he “had a birthday party the following weekend.” He needed to be home for is mother’s birthday party. He said he “would have to think about it” and that “it was not a decision he could make on the spot.” That part of the evidence is consistent with Mr. Jansen’s version of the events. However, in Ms. Churchwell’s opinion Mr. Jansen “pretty much” told the dispatcher that he was not going to Ontario to get the load. Mr. Jansen’s trailer had to go to Ontario and the dispatcher then told him to take it to Edmonton, Alberta, give it to another driver who would take over. At no point in time did the dispatcher tell Mr. Jansen that he was fired. That was the last conversation with Mr. Jansen that day and the employer made arrangements with the Edmonton driver to take the load to Ontario.
12 The next morning, Thursday November 15, Mr. Jansen had not arrived in Edmonton, and the dispatcher called him and asked him where he was. Mr. Jansen said he called the dispatcher. In any event, Mr. Jansen told him that he was east of Calgary and on his way to Ontario, and not to Edmonton. The dispatcher told him to turn the truck around. The dispatcher then called the Edmonton driver and gave him something else to do, and he arranged for another driver out of Saskatchewan to proceed to Paris, Ontario. He told Mr. Jansen to bring the truck and trailer back home to the yard. From the employer’s standpoint, he had refused to go to Ontario and had not complied with the direction to take the trailer to Edmonton.
13 On Friday, November 16, dispatcher noticed that Mr. Jansen had returned to the yard and parked the empty trailer. He had taken the truck home, something he had generally not done before. The employer’s expectation was that the truck and trailer would be there. The dispatcher called Mr. Jansen who said he had taken the truck home to “clean it up.” To Ms. Churchwell this meant that Mr. Jansen “no longer [worked] for us.” He had, in effect, from the employer’s standpoint resigned, or quit, from his employment with Pacific. The dispatcher told him that he wanted him to return the truck. When the truck was not back in the yard in the afternoon of November 16, the dispatcher called Mr. Jansen again and was told that he would bring it back.
14 Mr. Jansen brought the truck back. He met with Ms. Churchwell and settled his pay and some of his expense issues. At that time, she said, he wanted to be paid for the steering wheel in the truck, which he had replaced and paid for. Ms. Churchwell said she found the receipt for the steering wheel. She was also concerned about some of the charges on Mr. Jansen’s cell phone bill that did not relate to the employer’s business. Ultimately, these charges were not in dispute.
15 As mentioned, the employer’s view of the circumstances is that Mr. Jansen quit his employment. In a November 19, 2007, letter to Mr. Jansen, attaching his expense details and pay cheque, Pacific set out its view of the preceeding days’ events and confirmed:
”We regret that you decided to terminate your employment with Pacific Central Carriers this way as you had been a valued employee for many years, good lock to you”
”signed”
Charlene Churchwell
General Manager
Not unexpectedly, Mr. Jansen’s version of the events differ somewhat.
16 There is no dispute that Mr. Jansen accepted the trip to Ontario. He said he told the dispatcher that he could not leave until after November 11, Remembrance Day. The employer accepted this. However, Mr. Jansen also said that he had told the dispatcher that he had to be back for his mother’s birthday party on November 24. Ms. Churchwell disagreed and questioned Mr. Jansen extensively on that point. However, questioned in cross-examination, she said she did not know if Mr. Jansen had told the dispatcher about the birthday party. In her view, it was simply not possible for Mr. Jansen to complete the trip in time. She said that had the employer known this, it would have assigned another driver for the job. Mr. Jansen agreed that it would be a “tight squeeze,” but he maintained that it could be done and, in fact, that he had done it in that time. It was clear from his description of the route that there would not have been any or much room for any emergencies. In my view, however, nothing turns on this.
17 Mr. Jansen left for Ontario in the early hours of November 12. He explained that he called the dispatcher on November 14 from Calgary and asked if he was still going on to Ontario. The dispatcher confirmed this, but said that the equipment would not be ready for pickup until November 20. Mr. Jansen agreed that he said that this was “not going to work.” At that point the dispatcher “became unglued” and told him that “you [Mr. Jansen] either going to point that fucking truck east, or point that fucking truck north, and switch trailer with [the Edmonton driver] when he comes back from Fort McMurray and he can go to Ontario, and you can bring the fucking truck back to the yard and clean that fucking thing out” (emphasis added). Mr. Jansen said that he told the dispatcher that he “needed some time to think about that.” His response was that “you have 5 seconds.” Mr. Jansen said that he said that he “needed more time to phone his mother” because she had a birthday party planned. He left it at that. He called his mother and discussed the matter with her. He said he told her that he would not be back in time because he understood that had been given an “ultimatum,” a choice of going to Ontario or losing his job. In cross-examination, Ms. Churchwell agreed that the dispatcher had “swore” and used foul language. When the content of the conversation was put to her, she said she did not “remember [the dispatcher] being that emphatic.”
18 In the circumstances, I prefer Mr. Jansen’s evidence that he was given a choice of completing the trip or being fired. Whether or not Mr. Jansen had, in fact, told the dispatcher about having to return on November 24, or not, the customer was an important one to the employer, and it was common ground that the trip to Paris, Ontario and to Prince George, BC would be a “tight squeeze” in those circumstances. Both Mr. Jansen and Ms. Churchwell’s evidence suggest that the dispatcher was swearing at Mr. Jansen. I accept that the dispatcher became “unglued” and told Mr. Jansen to go to Ontario or “bring the fucking truck back … and clean [it] out.”
19 Mr. Jansen agrees that the word “fired” was not used. However, in the trucking industry, where drivers are assigned to a truck, “that’s your truck and no one else drives it.” Mr. Jansen explained that in his view, being told to “clean out your truck” was equivalent to being told “you’re gone,” i.e. you’re fired. This evidence was not challenged on cross-examination and I accept it.
20 While Mr. Jansen told the dispatcher that he “needed more time,” he admitted in cross-examination that he did not call the dispatcher back to let him know what he intended to do, to go to Ontario. He agreed that the dispatcher at the end of that day, therefore, did not know if he intended to comply with the “ultimatum.” As mentioned earlier, Ms. Churchwell’s opinion was Mr. Jansen “pretty much” told the dispatcher that he was not going to Ontario to get the load. Her evidence was that the dispatcher told him to take the trailer to Edmonton, Alberta, and give it to another driver who would take it to Ontario. The employer’s evidence was that it made the necessary arrangements with the Edmonton driver. The reason the dispatcher called Mr. Jansen in the morning of November 15 was that he had not arrived in Edmonton as expected and the other driver had contacted Pacific.
21 In my view, nothing turns on whether who called whom. In fact, in the circumstances, I find it more likely that the employer called Mr. Jansen. In any event, Mr. Jansen said that when he called the dispatcher the next morning, November 15, he asked him “where the fuck are you.” Mr. Jansen responded that he was east of Calgary. The dispatcher then said that he had “told [him] to bring the truck north and switch with [the Edmonton driver].” Now he could “come back the shortest way, and clean that fucking thing out.” Mr. Jansen understood that he had been fired and did just that.
22 With respect to this conversation, the parties agree that the dispatcher asked where he was, suggesting that the employer believed that it had clearly communicated to Mr. Jansen, at the very least, that he was to take the trailer to Edmonton. The parties also agree that Mr. Jansen was told to return to the yard with the truck. They do not agree that he was told to “clean out” the truck. In all of the circumstances, I prefer Mr. Jansen’s evidence on this point. Pacific was sufficiently flexible to arrange for two other different drivers to take the load. I am troubled why the employer would not simply have told Mr. Jansen to carry on to Ontario, now that he was on his way. The dispatcher was likely upset that Mr. Jansen had disregarded his instructions and communicated his dissatisfaction in that manner, if their past relationship is any yardstick.
23 I am troubled by Pacific’s failure to call the dispatcher to testify at the hearing. Much of the material evidence was focused on the November 14 and 15 telephone conversations between Mr. Jansen and the dispatcher. While Mr. Jansen was able to provide a detailed and colourful description of those conversations, Ms. Churchwell was, first of all, not a party to those conversations, even if she was, as she said, in the office and close to the dispatcher at the time. Second, questioned about specifics of the language used, she did not recall the dispatcher telling Mr. Jansen to “clean out” the truck in the November 14 conversation. Not recalling something is less than a clear and unequivocal denial and, on balance, therefore, I prefer Mr. Jansen’s evidence in that regard. The dispatcher would have been an appropriate witness at the hearing. It was clear from the employer’s response to the initial complaint that the conversations between Mr. Jansen and the dispatcher were material. In the result, I draw an adverse inference from the employer’s failure to call the dispatcher. In any event, I find that subsequent events confirm that conclusion that the dispatcher told Mr. Jansen to return and clean out his truck.
24 Mr. Jansen arrived at the employer’s yard around midnight of November 15, after traveling all day, and dropped the trailer off. It was, he explained too late to clean out the truck. Having spent two years in that particular truck, he had a lot personal belongings in it, including TV, logbooks, clothing and bedding, and cleaning it up was a “four hour procedure.”
25 He testified that the dispatcher called him in the morning of November 16 and said “I see the fucking trailer, where is the fucking truck.” This is also consistent with the employer’s evidence, and, in my view, confirm that the dispatcher told Mr. Jansen to return and clean out his truck. Mr. Jansen explained that the truck was at his home and that he was cleaning it out. He asked when Mr. Jansen would drop off the truck. Mr. Jansen responded that he would do so “sometime this afternoon.” Before going to the yard, he called a friend and asked him to come along. Mr. Jansen said he was concerned about his safety. He explained that the dispatcher had “threatened physical violence” before and wanted to have a witness there in the event that happened.
26 Mr. Schryvers, Mr. Jansen’s cousin, attended the hearing as a witness. While he explained that Mr. Jansen had told him, from time to time, about his troubled relationship with the dispatcher, I do not put much weight on that particular (hearsay) evidence. He explained that Mr. Jansen asked him to come with him to the yard to return the truck on November 16, because he wanted a witness in case anything happened. His evidence was that he attended the yard and had a conversation with the owner who challenged his presence there. When he explained that he was there with Mr. Jansen who was concerned about the dispatcher, the owner said that the two had had disagreements for too long and that “it was time we parted ways.” Although I treat it carefully, in light of the relationship between Mr. Jansen and Mr. Schryvers, this last statement was not challenged in cross-examination and is, in any event, consistent with my findings that the dispatcher told Mr. Jansen to return and clean out his truck.
27 Mr. Jansen received a letter from the employer on November 19. The letter confirmed that the employer’s view that he had “terminated” his employment with Pacific, i.e. that he had quit. Mr. Jansen denied that he had quit. He explained that he had just bought a condominium and had other financial and could not afford to quit his employment.
28 Correspondence from Pacific in response to the initial unjust dismissal complaint states that it did not dismiss Mr. Jansen and, in light of a great demand for drivers at the time, particularly drivers experienced in hauling heavy equipment, would not have dismissed him. All the same, there is, in my view, a “disconnect” between that and the lack of effort on the part of Pacific to retain Mr. Jansen.
Discussion
29 The Employer argues that Mr. Jansen quit his employment when he refused its directions and cleaned out his truck. The employer emphatically denies that it fired Mr. Jansen. Mr. Jansen on the other hand argues that he had no intention to quit and was fired.
30 In my view, the law as to what constitutes a resignation, or a quit, is well settled. It may, however, be difficult to determine whether an employee has, in fact, quit or been terminated by the employer. The present is no exception to that. The learned authors, G. England, I. Christie and M. Christie., Employment Law in Canada (3rd) (Markham, Ont.: Butterworth (1998 – looseleaf), LexisNexis version) explain as follows:
[beta] 13.12 … The courts and statutory adjudicators, echoing the approach of collective agreement arbitrators, have held that a valid resignation must have a subjective as well as an objective component.1 The former requires conduct on the employee’s part that unequivocally manifests that he or she had the subjective intention of quitting. The latter requires conduct on the employee’s part that would lead a reasonable person in the position of the employer to believe that the employee had carried out his or her subjective intention. Since, in a wrongful dismissal action, the burden of proving that he or she was dismissed is on the employee, the employee must prove that he or she has not resigned if the employer succeeds in raising a prima facie case of a quit.2
They further explain:
[beta] 17.44 The principles for distinguishing between a dismissal and a resignation have been summarized as follows:
(1) a resignation has both a subjective element (the intention to resign) and an objective element (an act resulting from the intention to resign);1
(2) resignation is a right personal to the employee and not the employer; it should thus be voluntary;
(3) a resignation is perceived differently depending on whether or not the intention to resign has been expressed;
(4) the intention to resign is not presumed unless the employee’s conduct is inconsistent with any other interpretation;
(5) the expression of an intention to resign is not necessarily conclusive as to the employee’s real intention;
(6) in case of ambiguity, a resignation is generally not found;2
(7) the prior and subsequent conduct of the parties is an important element in determining whether there has been a resignation;3 and
(8) there is a “strong onus” on the employer to prove that the employee has resigned.4
This approach is identical to that of collective agreement arbitrators.5
31 Briefly put, in order to establish a resignation, there must be evidence establishing both the subjective and an objective component.
32 I first turn to the issue of whether the employer has established a prima facie case for a resignation. In the case at hand, there is no evidence that Mr. Jansen at any point stated expressly and directly to the employer an intention to quit. At most the evidence establishes that he told the employer, when informed about the one-day delay, that this was “not going to work,” that he needed more time to think and the employer refused to allow him that time. His evidence was that he was given an ultimatum of either going to Ontario or returning the to the yard and cleaning it out. At best, from the employer’s standpoint, this evidence is equivocal and capable of other interpretations that a resignation. If, as he explained, the dispatcher gave him “five seconds,” I would be hard pressed to conclude that the subjective component has been established, particularly in the context of the dispatcher swearing at Mr. Jansen and telling him to point to “fucking truck east or … north.” It hardly appears voluntary and fails to meet the subjective component of the test. In my view, therefore, the employer has not established a prima facie case that Mr. Jansen quit.
33 In any event, looking at the objective component, the subsequent actual cleaning out of the truck may confirm either version, that Mr. Jansen quit or that he was fired. However, the undisputed fact is that Mr. Jansen on November 15 was on his way to Paris, Ontario. From that I conclude that even if Mr. Jansen had somehow communicated an intention to quit or resign in the November 14 telephone conversation, he regretted it and, whether he called the employer, or the employer called him, in the morning of November 15, the employer knew that he was on his way to Ontario. Mr. Jansen is not without blame, and his conduct could be characterized as insubordinate. He could have called the employer after speaking with his mother, and saved the employer the trouble and inconvenience of arranging with other drivers to take the load. However, Mr. Jansen’s conduct must also be seen in context. Perhaps his conduct is understandable in light of the dispatcher’s abusive and provocative conduct. I am mindful of the fact that the dispatcher regrettably did not testify, and his perspective, therefore, is missing from this picture.
34 Even if I had found that the employer had established a prima facie case, such that the burden shifted to Mr. Jansen to establish that he did not resign, I would not have found that he did so.
35 In the circumstances, in light of my findings of fact, I am of the view that the employer terminated Mr. Jansen’s employment. The employer gave him an ultimatum on November 14, threatening his employment. On November 15, the employer told him to return the truck and clean it out. The word “fired” was not used. It does not have to be. In the trucking industry, where drivers are assigned to a truck, “that’s your truck and no one else drives it.” Mr. Jansen’ view, being told to “clean out your truck” was equivalent to being told “you’re gone,” i.e. you’re fired, was consistent with Ms. Churchwell’s understanding on that specific point (although from a different perspective). In short, the employer terminated or fired him.
36 In this case, the employer’s case rests upon being able to establish a quit, and there is no argument in the alternative, for example, that it had just cause for the termination. In the result, I conclude that Mr. Jansen was unjustly dismissed.
37 As the parties agreed to defer the issues related to remedies, the hearing will reconvene to deal with those. In that regard I refer the parties to Section 242(4) of the Code provides as follows:
(4) Where an adjudicator decides pursuant to subsection (3) that a person has been unjustly dismissed, the adjudicator may, by order, require the employer who dismissed the person to
(a) pay the person compensation not exceeding the amount of money that is equivalent to the remuneration that would, but for the dismissal, have been paid by the employer to the person;
(b) reinstate the person in his employ? and
(c) do any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal.
Order
38 I conclude that the employer dismissed Mr. Jansen without just cause. I order the parties to contact my office to set dates to reconvene the hearing to deal with remedies.