Canadian Safety Reporter

CSR | August 2017 | News invited, he considered it to be workplace harassment because it was opportunity to make con- tacts and the owners' attitudes bled into the workplace at Low- erys. Christie argued that they only invited Lemesani to cook when they hosted the party, and in 2011 they didn't host it. Anxiety attack ended active employment On Aug. 19, 2011, Lemesani suf- fered an acute anxiety attack that necessitated hospitalization. His doctor provided a note for Lowerys indicating Lemesani would be off work indefinitely, though Lemesani didn't say why. He applied for and received em- ployment insurance benefits for three months, followed by long- term disability benefits. In January 2012, Lemesani told the benefits provider he hoped to return to work with modified duties or a different oc- cupation by the end of the year and Lowerys confirmed it would try to accommodate him. In October 2012, the ben- efits provider learned Lemesani had been managing five rental homes and running a popcorn business, so it determined he had demonstrated an ability to return to work. Lowerys had a position available, but Lem- esani provided a doctor's note saying he wasn't ready to return to work and he could not work around other people because of his anxiety disorder and depres- sion. The benefits provider ter- minated his benefits and, with no further medical information offered, Lowerys terminated his health benefits on June 30, 2013 — it had been paying the full pre- miums since Lemesani had been off work. Lemesani sued for wrong- ful and constructive dismissal, claiming his anxiety attack was caused by continuing harass- ment he suffered at work from Christie and Christie's brother who was Lemesani's manager. He cited the contracting invoice dispute, the cottage party exclu- sion, the bonus alteration, and withdrawal of leasing schedules as incidents of harassment, and also claimed Lowerys withdrew his expense account, costing him valuable face-to-face time and limited his interaction with clients, and withdrew permis- sion to travel to other areas in northern Ontario. Lemesani claimed 20 months' salary in lieu of notice, $40,000 in human rights damages, and $60,000 in aggravated damages. Lowerys argued sales repre- sentatives didn't have expense accounts and Lemesani could only expense costs for clients with prior approval. It also said Lemesani only temporarily trav- elled monthly to other areas in northern Ontario to cover for a sales representative who left the company. Once staff were hired in the area, there was no lon- ger any need to send Lemesani, whose sales there were "anemic" anyway, said Lemesani's man- ager. Lemesani also reported that his manager directed him not to sell office furniture, which would limit his income. This was another instance of harassment, said Lemesani. However, the manager stated that Lemesani's assignment was to sell copiers and only sales representatives in remote areas were allowed to sell all product lines. Selling furni- ture took away from Lemesani's time selling copiers and other of- fice machines. The court found there was no workplace harassment, as Lowerys had reasonable expla- nations for all of the situations that Lemesani claimed were ha- rassment, and Lemesani's claims were inconsistent and not cred- ible. It also found Lowerys was willing to accommodate him when he was willing to return to work, but Lemesani didn't provide medical information or try to return to work as part of the accommodation process — even though he was working in property management and run- ning a business while on medical leave. As a result, there was no basis for human rights or aggra- vated damages — particularly since Lowerys continued to pay health benefits for some time after Lemesani ended his active employment, and Lowerys was only responsible for reasonable notice. Since Lemesani had 15 years of service, wasn't a supervisor and was 49 when terminated, the court found he was entitled to 10 months' pay in lieu of no- tice, minus his earnings from his own company and his property management work. For more information see: • Lemesani v. Lowerys Inc., 2017 CarswellOnt 5767 (Ont. S.C.J.). Bad relations < pg. 5 Networking and sales opportunities taken away ©2017 Thomson Reuters Canada Ltd ISBN/ISSN: 978-0-7798-2810-4 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, photocopying, recording or otherwise without the written permission of the publisher (Thomson Reuters, Media Solutions, Canada). Canadian Safety Reporter is part of the Canadian HR Reporter group of publications: • Canadian HR Reporter — www.hrreporter.com • Canadian Occupational Safety magazine — www.cos-mag.com • Canadian Payroll Reporter — www.payroll-reporter.com • Canadian Employment Law Today — www.employmentlawtoday.com • Canadian Labour Reporter — www.labour-reporter.com See carswell.com for information Safety Reporter Canadian www.safety-reporter.com Published 12 times a year by Thomson Reuters Canada Ltd. Subscription rate: $129 per year Customer Service Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5106 E-mail: customersupport.legaltaxcanada@tr.com Website: www.carswell.com One Corporate Plaza 2075 Kennedy Road Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada Karen Lorimer Publisher/Managing Editor Todd Humber Lead Editor Jeffrey R. Smith Assistant Editor Mallory Hendry Marketing & Audience Development Manager Robert Symes rob.symes@thomsonreuters.com (416) 649-9551 Circulation Co-ordinator Keith Fulford keith.fulford@thomsonreuters.com (416) 649-9585 Sales Manager Paul Burton paul.burton@thomsonreuters.com (416) 649-9928 e company had reasonable explanations for all of the situations the worker claimed were harassment and they were legitimate business decisions.

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