Canadian Employment Law Today

Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends Mentally and physically troubled worker didn't mean to quit: Arbitrator Worker felt frequent absences and medical issues made it difficult to keep going but wasn't thinking clearly when he submitted resignation BY JEFFREY R. SMITH AN ONTARIO arbitrator has deemed a worker with emotional and physical issues who missed a significant amount of work and quit his job because of it didn't subjec- tively intend to resign. Lawrence Sutherland was hired by Lecours Lumber Company, a sawmill in Calstock, Ont., in 1999. Sutherland had sev- eral health conditions including diabetes, sciatica, back pain, headaches, anxiety and depression — the latter sometimes causing him trouble with concentration. In 2016, Sutherland was hit in the head by a log and was diagnosed with a concus- sion. He was off work for about one month, but when he returned he still didn't feel 100 per cent. In September 2016, Lecours gave him a letter stating that during the previous 18 months, Sutherland had taken 100 sick days, had two unauthorized leaves, and had been suspended for five days. e company requested that if his health issues kept com- ing back but could be treated, "we ask that you get all the medical assistance or health advice necessary for you to get better and healthier." In late January 2017, he had issues with his diabetes and had to go off work again, this time for four months. He returned in May but symptoms of all his medical conditions came back. Sutherland told a union steward about his issues and Lecours provided him with a heater for his work station, which help al- leviate muscle cramps and cold feet. He re- quested some time off to deal with his health matters but was told he had been taking too many days off. Sutherland became worried that man- agement believed he wasn't a good worker and was always missing work. He became "stressed out, confused" and "couldn't think straight." He told Lecours' payroll and ben- efits administrator that he was thinking of resigning from his job. He said he should be okay for the short term with his pension plan money, welfare assistance, and possibly a disability pension. He eventually told the administrator he was missing many shifts for various reasons and wanted to give his resignation. e administrator invited him to meet the following Monday, June 5, after taking the weekend to think about it. Sutherland thought about it over the weekend and discussed it with a member of his band council — Sutherland was a mem- ber of the Constance Lake First Nations band — and spoke with his union steward. On June 5, he told the administrator he wanted to submit his resignation. e administrator didn't inform the human resources repre- sentative or the union of Sutherland's deci- sion before processing the resignation, but Sutherland signed a letter of resignation and a few days later cashed a cheque for his pen- sion plan money. One month later, Sutherland told a band council member that he wanted to "with- draw his quit." He subsequently met with a lawyer because "I wanted to find out if this resignation was valid." He then contacted a union steward and the union filed a grievance for improper termination, saying Sutherland didn't intend to resign and was affected by his chronic anxiety and other medical condi- tions. On Nov. 9, Sutherland's doctor provided a medical report that documented his dia- betes, low back pain, and chronic anxiety. It indicated his anxiety and depression "may cloud his judgment" but he was able to re- turn to work at the sawmill with no restric- tions other than no prolonged heavy lifting because of his back and sciatica issues. e doctor also said that Sutherland told him at an appointment in September to get docu- ments for disability benefits that he regret- ted his decision to resign. e arbitrator noted that it had been es- tablished that "quitting a job has in it a sub- jective as well as an objective element. An employee who wishes to leave the employ- ment of the company must first resolve to do so and he then must do something to carry his resolution into effect," as stated in Brown and Beatty, Canadian Labour. e arbitra- tor agreed with the idea that the employee's state of mind at the time of resignation and following it were important factors in deter- mining the employee's intent. e arbitrator found that there was ob- jective evidence that Sutherland intended to resign — he told the payroll and ben- efits administrator that he was considering it, thought about it for a weekend, and had considered his financial options regarding his pension plan and disability benefits. In addition, Sutherland talked to a member of the band council about it, signed his letter of resignation, and cashed his pension cheque. However, the arbitrator also found that Sutherland's emotional state at the time of his resignation "was one of frustration, depression and anxiety with his diabetic condition affecting his ability to work." His doctor's medical report several months later also indicated that it was possible Suther- land's anxiety and depression could cloud his judgment. In addition, Sutherland himself reported he was having difficulty thinking clearly and felt overwhelmed when he was considering resigning from his job. While Sutherland spoke to a band council member before meeting with the Lecours administrator, he didn't seek advice from the union and didn't have a union represen- tative with him when he signed the letter of resignation. is also called into question Sutherland's intentions and clarity, said the arbitrator. "I find (Sutherland's) emotional state was such that his decision to resign was not ratio- nal," the arbitrator said. "I find, further, that the emotional state affecting his decision continued as a circumstance that coloured the objective evidence of his telephone call to (the administrator); his discussion with (the band council member); his meeting with (the administrator); and, the cashing of his pension plan money within a short time following his resignation." e arbitrator determined Sutherland's decision to quit his job was affected by his emotional state and he didn't have the "sub- jective intention" to sever the employment relationship. e arbitrator overturned the termination, leaving Lecours and the union to work out the details of Sutherland's rein- statement and compensation for lost wages and benefits. For more information see: • Lecours Lumber Co. and USW, Local 1-2010 (Sutherland), Re, 2018 Carswel- lOnt 546 (Ont. Arb.). Worker reported feeling stressed out, confused, and unable to think straight before telling the payroll administrator he was resigning.

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