Resignation lost in translation (Legal View)

Non-English-speaking worker with sore feet wanted to ‘stop working’ but HR supervisor at meat packing plant wrongly interpreted request as ‘I quit’
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 05/17/2013

An Ontario company didn’t properly confirm if an employee who couldn’t speak English actually resigned, resulting in wrongful dismissal, an arbitrator has ruled in reinstating the woman.

Irondina Nunes, 62, was hired by Quality Meat Packers in Toronto to cut and pack ribs in October 1999. Nunes didn’t understand English and only spoke Portuguese, so her hiring and orientation were handled by the HR supervisor, who spoke Portuguese and verbally translated all necessary forms for Nunes.

Nunes was considered a good employee and her employment continued without event until 2010, when she began suffering pain and swelling in her feet.

She discussed it with her foreman but didn’t need to take any time off until June 11, 2011, when she asked to leave work two hours early. Her request was granted and she went to her doctor.

Nunes continued to have problems with her feet over the next week, but continued to work until Friday, June 17, when she asked to leave halfway through her shift so she could visit her doctor again.

After the weekend, on Monday, June 20, Nunes called the HR supervisor and told her she couldn’t work because the work boots that she was required to wear caused pain and swelling in her feet.

She claimed she said she needed time off, but the HR supervisor — who was unaware Nunes had previously left work a couple of times with foot pain — thought she wanted to quit, so she told her to come in and fill out a resignation form.

On June 21, Nunes came into the Quality Meat Packers office and the HR supervisor claimed Nunes told her she was having problems with her feet and she wanted to stop working.

Since Nunes didn’t ask for accommodation or disability benefits, the HR supervisor determined Nunes wanted to resign and completed a confirmation of resignation/retirement form for her.

She testified that she verbally translated and explained the form to Nunes, in Portuguese, and then completed it for her, writing in English that Nunes had resigned for medical reasons.

The HR supervisor said Nunes did not ask any questions regarding the form.

She also didn’t give Nunes a copy of the resignation/retirement form, though she later testified she would have given Nunes a copy if she had asked for it.

The HR supervisor asked Nunes for the key to her locker and her security and benefits cards, to which Nunes complied. Nunes cleaned out her locker and left. And the company posted her job opening one week later.

Nunes didn’t read her record of employment (ROE) — which stated she quit — because it was in English.

But about 10 days later, her husband did and he called Quality Meat Packers to clarify that his wife did not intend to quit.

Nunes said later she had assumed she had to clear out her locker and return her materials because she was unsure of when she would return to work, but had assumed she was just taking some time off to let her feet heal.

She also said she didn’t want to quit but didn’t ask to go on sick leave because “I am not a sick person,” and said she could have continued to work if she didn’t have to wear her work boots.

Nunes’ calls went unanswered by the company so her husband contacted the union, which filed a grievance for “improper resignation, failure to understand signed resignation.”

Misunderstandings revealed

For a worker to be found to have effectively resigned her employment, it must be demonstrated not only that she had a “subjective intention” to resign but this intention be confirmed by “objective conduct,” said arbitrator Peter Chauvin.

This situation could most likely be attributed to a misunderstanding between Nunes and the HR supervisor, exacerbated by the language barrier, he said.

The company was aware of the problems Nunes had been having with her feet. When she said she wanted to stop working, it would “be a relatively exceptional conclusion” to think she was quitting her job rather than requesting time off, as the company argued was the case, said the arbitrator.

There was no subjective intention by Nunes to quit, as the meeting with the HR supervisor was ambiguous and there was no indication Nunes understood what was happening, said Chauvin.

The union said the HR supervisor and Nunes did not have the same understanding of the concepts and words in Portuguese for “resign,” “quit” and “time off.”

Nunes said she didn’t understand she may have been entitled to accommodation or benefits and she also didn’t understand the reason for clearing out her locker and turning over her security key — she was following the HR supervisor’s requests because the supervisor was an authority figure.

Additionally, Nunes thought Quality Meat Packers had the right to discontinue her benefits until she returned to work, so she wouldn’t necessarily realize right away that her employment had been terminated, found the arbitrator.

Nunes’ actions after the dismissal also show she didn’t mean to quit, said Chauvin. Though more than one week passed before her husband called the company to clear things up, it was because she couldn’t read her ROE and was under a mistaken impression caused by the language barrier. Once she understood what was happening, she tried to clarify that she hadn’t quit.

“Under the circumstances, it would have been appropriate for (the HR supervisor) to specifically offer Ms. Nunes accommodation, disability benefits or an unpaid leave of absence, to call in a union representative, and to give Ms. Nunes a copy of the form,” said Chauvin. “If this had been done, the misunderstanding could have been avoided.”

Quality Meat Packers was ordered to reinstate Nunes and to determine if she was entitled to disability benefits while she suffered from foot pain and was unable to work during the summer of 2011.

For more information see:

Quality Meat Packers Ltd. and UFCW-Can, Local 175 (Nunes), Re, 2013 CarswellOnt 3605 (Ont. Arb. Bd.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.

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