Non-English-speaking employee wanted to take time off because of injury, but employer thought she was quitting
An Ontario company didn’t properly confirm if an employee who couldn’t speak English resigned, an arbitrator has ruled.
Irondina Nunes, 62, was hired by Quality Meat Packers in Toronto to cut and pack back ribs, in October 1999. Nunes didn’t understand English and only spoke Portuguese, so her hiring and orientation was handled by the HR supervisor, who spoke Portuguese and verbally translated all necessary forms.
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 she didn’t have to take any time off until June 11, 2011, when she asked to leave work two hours early.
Nunes continued to have problems with her feet over the next week, but worked through them until June 17, when she asked to leave halfway through her shift to see her doctor.
After the weekend, on June 20, Nunes called the HR supervisor and told her she couldn’t work due to the pain in her feet. Nunes claimed she said she needed time off, but the HR supervisor thought she wanted to quit, so she told her to fill out a resignation form.
The HR supervisor thought 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 the form for her, citing resignation for medical reasons. She didn’t give Nunes a copy of the form.
The HR supervisor asked Nunes for the key to her locker and access card. Nunes cleaned out her locker and left. Quality posted her job a week later.
Nunes didn’t read her record of employment — which stated she quit — because it was in English. Her husband read it 10 days later and called Quality to say she didn’t intend to quit. Nunes assumed she had to clear out her locker and return her materials because she was unsure of when she would return to work. She said she didn’t ask for sick leave because “I am not a sick person.”
Her husband also contacted the union, which filed a grievance.
The arbitrator found the situation could most likely be attributed to a misunderstanding between Nunes and the HR supervisor, exacerbated by the language barrier. Quality was aware of the problems Nunes had with her feet and when she said she wanted to stop working because of her feet, the arbitrator said it would “be a relatively exceptional conclusion” to think she was quitting her job rather than requesting time off.
The arbitrator found there was no subjective intention by Nunes to quit, as she didn’t understand what was happening. Nunes said she didn’t know she may have been entitled to accommodation or benefits, which is why she didn’t ask for them. She also didn’t understand the reason for clearing out her locker and turning over her security key. She was simply following the HR supervisor’s requests.
The arbitrator also found Nunes’ actions after the dismissal showed she didn’t mean to quit. Though some time passed before her husband called to clear things up, it was because she couldn’t read her record of employment and was under a mistaken impression, said the arbitrator. Once she understood what was happening, she made efforts to clarify that she hadn’t quit.
