In the matter of an appeal under Part III of the Canada labour Code
Arpe v. YVR Air Truck Freight Systems Inc.
Ib S. Petersen Referee
Heard: December 8, 2009
Judgment: January 11, 2010
Docket: YM2727-2776
Ib S. Petersen Referee:
Introduction
1 On October 6, 2009, the Minister of Labour appointed me as the wage recovery referee to hear the appeal brought by Mr. Arpe with respect to a Notice of Unfounded Complaint dated July 8, 2009. In the Notice, the inspector determined that Mr. Arpe was not entitled to two weeks’ pay in lieu of notice because he had quit his employment.
2 I convened a hearing in Abbotsford on December 8, 2009. At the hearing Mr. Arpe, Mr. Hutchison and Ms. Kuzyk testified under affirmation. I made an order for the exclusion of witnesses, and Ms. Kuzyk was not present until she was called to testify.
3 There were no issues with respect to my jurisdiction.
Issue
4 The issue before me is whether Mr. Arpe, in the circumstances, quit his employment and, therefore, is not entitled to pay in lieu of notice.
Facts
5 The background facts are relatively straightforward, and for the most part not in dispute.
6 Mr. Arpe worked as a truck driver for YVR Air Truck Freight Systems Inc. (”YVR”) between March 12, 2008 and January 30, 2009. YVR operates out of Surrey, B.C.
7 During his employment with YVR, Mr. Arpe, who lives in Abbotsford, B.C., found himself in strained financial circumstances, and found it difficult to cover such basics as rent, food and transportation, including to and from work. As a result, he missed work on a number of occasions. Mr. Arpe testified that Mr. Hutchison was an “awesome boss,” who would assist him with food and transport to and from work from time to time. Mr. Arpe’s vehicle needed repair and he had a substantial veterinary bill for his cat. Mr. Hutchison assisted him and arranged for repairs to the vehicle at a friend’s shop and lent the amount necessary to pay for the repairs to Mr. Arpe, with the agreement that he would repay the money from his wages. Later, Mr. Hutchison made arrangements for the purchase of a replacement vehicle, a Buick, for Mr. Arpe. On the evidence, at the time his employment came to an end, Mr. Arpe had repaid the amounts owing for the vehicle repairs and the Buick. As well, Mr. Arpe found that he frequently and regularly needed advances on his pay cheque to meet his living and other expenses. Mr. Hutchison accommodated these requests.
8 Mr. Arpe complained that he was not getting enough hours of work, although his complaint to HRSDC indicates that he worked an average of 35 hours per week. He found himself asking for and getting advances against his future wages. This became an ongoing, regular and continuous theme. Mr. Hutchison and Ms. Kuzyk, YVR’s office manager, testified that Mr. Arpe often required advances a few days after payday. In addition to helping Mr. Arpe with occasional food and transport, Mr. Hutchison tried to counsel Mr. Arpe with respect to his handling of his wages. He also suggested that Mr. Arpe find work closer to home, in Abbotsford, including part-time work for other employers. It is clear to me that the relationship between Mr. Arpe and his employer became strained as the result of having to advance money on an ongoing and regular basis. Mr. Arpe’s situation did not improve, and Mr. Hutchison became unwilling to continue advancing money. Ultimately, in my view, this came to a head on January 30, 2009.
9 The parties’ evidence with respect to Friday January 30, which was a payday, and the following few days, differs materially in some respects. There is no dispute that Mr. Hutchison deducted all the money owing by Mr. Arpe, a total of $536.19, leaving very little on the pay cheque, and much less than Mr. Arpe had expected.
10 Mr. Arpe said that Mr. Hutchison “sat him down” in the office, and told him that he had deducted the money. He became upset and angry. Mr. Arpe testified that the employer told him to find other employment closer to home, which he understood to mean that he was fired. Mr. Arpe also explained that Mr. Hutchison told him “not to worry,” that he was not fired but laid off and that he would have “enough hours for EI.” Mr. Arpe asked for his Record of Employment (”ROE”) and left the office. After he left YVR, Mr. Arpe explained that he went to the bank to cash the cheque. He then called YVR and requested that he be allowed to work two more weeks to cover his rent and car insurance. At the hearing, he stated that there is “no way he would quit.”
11 Mr. Hutchison and Mr. Arpe agreed that there was a “heated” discussion about the deduction of pay advances from the pay cheque, and his unwillingness to continue to advance funds on January 30. Mr. Hutchison had added Mr. Arpe’s vacation pay to the pay cheque. When Mr. Arpe saw the amount on his cheque, wanted to borrow more money. Mr. Hutchison refused to do that. He agreed that there was discussion about Mr. Arpe finding employment closer to home. He said he had suggested that on a number of occasions. He denied, however, that there was any mention of firing or layoff. He explained that Mr. Arpe became upset and angry and stormed out of the office, with the words “thanks for making me homeless.” He denied that Mr. Arpe had asked for his ROE on January 30.
12 Ms. Kuzyk observed and overheard part of the exchange between Mr. Arpe and Mr. Hutchison. She testified that Mr. Arpe was “pretty angry” and left saying thanks for making “homeless.” She could not recall if anything else was said.
13 Mr. Hutchison said he did not hear from Mr. Arpe after he left the office. His evidence was that Mr. Arpe did not show up for work on Monday February 2. He called Mr. Arpe and left a message to ask if he was “showing up for work.” His evidence was that Mr. Arpe returned his call in the afternoon of the following day, Tuesday February 3. At that point, he said, Mr. Arpe requested his ROE, which he said he was entitled to within 48 hours. Mr. Arpe, on the other hand, was adamant that there were no telephone calls on the Monday and Tuesday. Ms. Kuzyk testified that Mr. Hutchison had a telephone call from Mr. Arpe on February 3, and that Mr. Arpe requested his ROE. She was not party to the telephone call, but said that Mr. Hutchison, after he got off the telephone, told her that Mr. Arpe “wants his ROE.” To her that meant that he had quit. She completed the ROE accordingly. Mr. Hutchison said he mailed the ROE the following day.
14 Subsequently, Mr. Arpe applied for EI, and filed a complaint with HRSDC sometime later the following week. He did not, at least initially, question the reasons set out on the ROE, namely “quit.” He complained that the deduction of the $536.19 was an unauthorized deduction, and that he was entitled to two weeks wages in lieu of notice because he had been dismissed. YVR’s position was that it had deducted overpayment and that Mr. Arpe had quit his employment. The inspector found in favour of YVR on both issues.
15 There was no issue before me with respect to the overpayment. Mr. Arpe agrees that the amount was properly deducted.
Analysis
16 Mr. Arpe maintains that he was fired, and Mr. Hutchison says that he quit.
17 As many of these cases do, this case turns on the facts. As noted, there is conflict in the evidence with respect to what happened on January 30, 2009. 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…
18 The burden is on the employee to show that he or she was dismissed (see, for example, H & R Transport Ltd. v. Baldrey, [2004] F.C.J. No. 1379 (F.C.), affd H & R Transport Ltd. v. Baldrey (F.C.A.)). There is no issue that Mr. Arpe’s employment came to an end. However, while the Code does not define dismissal, it has been interpreted to mean termination of employment by act of the employer without the voluntary and informed consent of the employee (see Barnacle, England et al., Employment Law in Canada (Markham, Ont.: Butterworth (1998 — ), LexisNexis version).
19 In the case at hand, the background facts are not in dispute. Mr. Arpe regarded Mr. Hutchison as a “good boss,” who helped him with frequent pay advances, food, transportation to work etc. Despite the short-term nature of the employment relationship, Mr. Hutchison attempted to assist Mr. Arpe with financial counseling. There was nothing to suggest that YVR regarded Mr. Arpe as a problem employee, or that there were performance issues, apart from his inability getting to work from time to time. Those difficulties related to his financial circumstances, which, at least from the Employer’s perspective, did not seem to have any prospect of improvement, despite pay advances, food, counseling and transport assistance. In my view, the relationship between Mr. Hutchison and Mr. Arpe became increasingly strained, culminating in the discussion on January 30, 2009.
20 There is no dispute that there was a heated discussion regarding Mr. Arpe’s pay cheque on January 30. That discussion was triggered by the Employer’s decision to claw back all of the outstanding pay advances, $536.19, on one cheque leaving Mr. Arpe with much less than he had expected. While the Employer minimized the impact by adding Mr. Arpe’s vacation pay to the pay cheque, I think Mr. Hutchison had reached a point where he was unwilling to continue supporting Mr. Arpe as he had in the past. Mr. Hutchison testified that the discussion was like many others between the two, including suggestions that Mr. Arpe find employment, part-time or otherwise, nearer his home in Abbotsford. I do not accept that Mr. Hutchison told Mr. Arpe that he was fired or laid off. On his complaint form, Mr. Arpe stated that he was “let go” because the Employer “couldn’t afford to keep [him].” In a letter filed with HRSDC, in connection with this appeal, Mr. Arpe makes no mention of the being fired, laid off or being “let go,” rather the Employer told him he should find work close to home. Given Mr. Hutchison acknowledged supportive approach towards Mr. Arpe, I find it difficult to accept that he actually directly terminated Mr. Arpe’s employment, or that the deduction was intended to immediately and directly cause his termination. Rather, as mentioned above, I think Mr. Hutchison had reached a point where he was unwilling to continue supporting Mr. Arpe, as he had in the past, in an almost “parenting” manner.
21 There is no disagreement that Mr. Arpe became angry. Mr. Hutchison said the discussion was “heated.” Mr. Arpe became angry because his pay cheque fell short of his expectations and requirements, and because Mr. Hutchison refused to lend or advance him money, as he had in the past. I think, as well, that he was disappointed with Mr. Hutchison, who he regarded as a “friend,” and felt betrayed. While the deduction of the overpayments on one cheque was, perhaps, less than considerate, given the Employer’s peculiar knowledge of Mr. Arpe’s circumstances, there is, everything else being equal, no obligation in law on the part of an employer to lend or advance money to its employees. While I appreciate Mr. Arpe’s statement, at the hearing, that there is “no way I would quit,” which certainly makes sense in light of his financial circumstances, it is clear that he was very angry when he left YVR.
22 There is no disagreement in the evidence that Mr. Arpe left YVR’s office with the words “thanks for making me homeless.” In fact, I accept Mr. Hutchison’s characterization that Mr. Arpe “stormed” out of the office. Both his and Ms. Kuzyk’s evidence is consistent that Mr. Arpe was very angry. In all of the circumstances, including Ms. Kuzyk’s evidence, I believe it is unlikely that Mr. Arpe at that time told Mr. Hutchison that he “needed his ROE and wanted it within 48 hours.”
23 In all of the circumstances, I prefer the evidence of Mr. Hutchison that the next “contact” between the parties was on Monday February 2, when he called Mr. Arpe to find out if he was coming to work. Mr. Hutchison says he left a message, and that Mr. Arpe called him back the following day and requested his ROE. It was not unusual for Mr. Arpe to fail to attend work due to financial problems.
24 There is circumstantial evidence from Ms. Kuzyk confirming the sequence of events asserted by Mr. Hutchison. While she is an employee of YVR, and, thus, might have a motive for being biased in favour of her Employer, I find her testimony balanced, evenhanded and limited to what she heard and saw. Her evidence was that she observed Mr. Hutchison on the telephone on February 3 and when the call was complete, he told he that Mr. Arpe requested his ROE. She did not participate in the call. She then filled out the ROE that same day, and stated the reason for the issuance as “quit.” In her mind, when an employee requests his or her ROE, it means that the employee has quit. She also explained that the Employer’s practice, if it terminated an employee, was to provide the ROE together with the final pay cheque. Mr. Hutchison said that the ROE was mailed to Mr. Arpe on February 4. Mr. Arpe did not question the “quit” on the ROE until Employment Insurance questioned his entitlement to EI.
25 In short, on all of the evidence, I am not persuaded that YVR dismissed Mr. Arpe. His appeal is, therefore, dismissed.