Canadian Employment Law Today

October 6, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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©2021 Key Media Canada (HR) Ltd., a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under licence by Key Media Canada (HR) Ltd. CANADIAN EMPLOYMENT LAW TODAY is a trademark of Key Media Canada (HR) Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 79990 3547 RC-0001 How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE info@keymedia.com www.employmentlawtoday.com President: Tim Duce Editor: Jeffrey R. Smith Email: jeffrey.smith@keymedia.com Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: fred.crossley@keymedia.com Phone: (416) 644-8740 x 236 NAUK Subscriptions Co-ordinator: Donnabel Reyes Email: donnabel.reyes@keymedia.com Phone: (647) 374-4536 ext. 243 THIS INSTALMENT of You Make the Call fea- tures an Ontario worker who left work and made some demands of her employer. Karen Anderson worked as an office man- ager for Total Instant Lawns, a sod installation company in Ottawa. As the company operated on a seasonal basis, Anderson was on a fixed- term contract running from April to December 2018. Her duties included recording workers' hours that they sent to her and preparing the payroll and cheques for the CEO to sign, and scheduling work crews. Anderson's husband also worked for Total Instant Lawns on a temporary basis. On July 5, 2018, the CEO asked Anderson to provide payroll records for all the employ - ees because he found some discrepancies. The next day, she went into his office to pick up the payroll cheques, but she noticed that he hadn't signed her husband's cheque. She texted the CEO about it and he said that there was a prob - lem with the hours listed for her husband — his hours weren't supported by texts on a cell- phone app the company used, while all other employees' hours were. He also wanted to de- duct pay from her husband's last paycheque because he hadn't brought the truck back to his office on his last day, so another employee had to retrieve it. Anderson responded that she recorded the hours as she received them and she felt it wasn't fair or ethical. She also texted that "I'm ready to leave and return when [my husband] has the pay owed to him." After some more back-and- forth communication, Anderson was unable to resolve the issue — the CEO insisted that An - derson's husband's hours were overstated and Anderson maintained that they were correct. Anderson walked out of the office on the morning of July 6. According to Anderson, she told the other employee in the office that she was leaving for the day — she later said she had a headache and intended to return the follow - ing Monday. When she told the CEO, he asked her to leave her key, but she had already put the keys on his desk. The other employee reported that Anderson said she had been fired due to a dispute, but the CEO said he was unsure whether Anderson intended to return to work. That evening, Anderson and her husband hosted a meeting with most of Total Instant Lawn's employees. They created a document that they called a "strike notice" that made de - mands related to pay rates and safety issues, as well as that "those who were wrongfully termi- nated" including Anderson should be offered their jobs back at full pay, with Anderson given authority to schedule the workers without al- teration by management. The notice also de- manded that Anderson's husband be paid in full. On July 7, the CEO was informed that the entire workforce had walked out and he was given the strike notice. He immediately texted Anderson to say she was barred from company properties and job sites, and from accessing company computers and accounts. He also demanded copies of every conversation with present and past employees, including "clock in and clock out" messages. The CEO believed that Anderson had helped organize the work stoppage and contacted the other signatories. He was able to convince most of his employees to return to work. Anderson sued for wrongful dismissal dam - ages, while Total Instant Lawns argued that she voluntarily left her job. YOU MAKE THE CALL Did Anderson voluntarily leave her employment? OR Did the company terminate Anderson's employment? IF YOU SAID Anderson voluntarily left her employment, you're right. The court noted that a resignation must be clear and un- equivocal, and a repudiation of an employ- ment contract involves a refusal to perform an essential condition of the employment contract. In these circumstances, the court found that Anderson never unequivocally in- dicated to the CEO that she wasn't returning to work and, in fact, the CEO was uncertain if she would return. In addition, the other employee in the office thought Anderson had been terminated. The situation was unclear, said the court. However, the court found that the evidence indicated that Anderson had no intention of returning to work unless certain condi - tions were met. She didn't instigate the work stoppage, but she was an active participant in organizing it, the court said. In the strike no- tice that she signed, Anderson demanded full control of scheduling over the CEO, which was a change in the terms of her employment. In addition, she failed to keep her husband's hours and refused to provide a record of those hours, so Anderson was refusing to perform her duties, the court said in finding that An - derson repudiated her employment contract. "In the circumstances, this behaviour con- stituted an attempt on Ms. Anderson's part to make significant changes to her duties as outlined in her employment contract and it was incompatible with her continued em- ployment," said the court in dismissing An- derson's wrongful dismissal claim. For more information, see: • Anderson v. Total Instant Lawns Ltd., 2021 ONSC 2933 (Ont. S.C.J.). Ontario worker sows discontent with employer

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