Canadian Employment Law Today

Canadian HR Reporter, 2020 Canadian Employment Law Today Canadian Employment Law Today | | 7 More Cases More Cases time who could then be moved to full-time after Nowicki retired. In July, McKinnon hired someone full-time for Nowicki to train. He also emailed several LIUNA employees and outside individuals to announce that Nowicki would be retiring the following year and the new employee would replace her. Nowicki didn't respond because she hadn't decided on her actual retirement date. Confirmed retirement date Soon after, Nowicki found out from office staff that McKinnon had put her down to retire in January 2016, so she sent a written notice of retirement to him on Aug. 31 stating that "if my life circumstances do not change, I plan to continue my employment until May 31, 2016." McKinnon responded with an offer for her to retire on Jan. 1, saying LIUNA was "prepared to pay you." The offer surprised Nowicki as there had been no discussions about her retirement since March. She refused it and felt McKinnon wanted her gone. Nine days later, McKinnon called Nowicki to the office and asked her to sign a memoran - dum of understanding (MOU) that stated that she would not report to work after Jan. 2, 2016 but LIUNA would pay her wages and pension contributions until Jan. 31 and then provide a record of employment indicating layoff. Nowicki rejected the offer and asked for all wages, benefits and pension up to May 31, 2016. She also felt pressured because McKin - non wanted her to accept it immediately. McKinnon made a third offer two weeks lat- er and Nowicki countered with an offer of her own. McKinnon answered this with another MOU similar to the first one, which she again refused. According to Nowicki, McKinnon said she could work until May but then came to her office, threw the last rejected offer on her desk angrily and said she would be "stupid, stupid, stupid" if she didn't sign. On Oct. 29, McKinnon started yelling at Nowicki over an employer's concern about a contract switch. Nowicki had asked him about it and he had said not to take action because he knew the employer, but McKinnon claimed she hadn't told him and she had made him look stupid. When she said not to speak with a raised voice, McKinnon grabbed the door frame and said in an intimidating and sarcastic voice, "I'm going to do whatever I want in this office." Nowicki left work and provided a doctor's note saying she was "medically unfit for work due to workplace stress" until Nov. 20. Attempts to negotiate retirement continued during leave McKinnon sent Nowicki a letter acknowledg - ing her medical leave and stating that the re- placement would be handling her workload. He added that when she felt better he was prepared to discuss his proposed offer of early retirement. However, Nowicki didn't respond as she had stopped communicating with him while on leave. Nowicki went on short-term disability leave and provided a doctor's note saying she would be totally disabled until Jan. 6, 2016. She then provided notes on a monthly basis stating she was "medically unfit for work due to illness" until April 18. Nowicki met with McKinnon in mid-March when she dropped off her latest doctor's note. She told him she had "a big depression" and, when McKinnon mentioned that she hadn't applied for her pension, she said she wanted to return to work due to her "current life cir - cumstances." McKinnon made another retire- ment offer, but she didn't accept. A few days later, McKinnon sent her a let- ter pointing out that her vacation entitlement would allow her to be off from April 18 until her stated retirement date and LIUNA would facilitate paying out her vacation and sever - ance entitlement before then to allow her to gain another year's pension credit. Nowicki didn't accept the offer and re- turned to the office on April 18. McKinnon told her she should apply for her pension and he was willing to give her six weeks' vacation. Nowicki gave him an MOU with her terms, but he deemed it unreasonable and terminat - ed her employment. Nine days later, LIUNA paid Nowicki a lump sum for severance pay and wages. She filed a workers' compensation claim for trau - matic mental stress from the Oct. 29, 2015 argument — which was denied because her stress was from general workplace conditions, not a sudden and unexpected traumatic event — and, months later, filed a complaint alleg - ing discrimination and harassment in em- ployment because she wasn't accommodated after her sick leave and she was forced into retirement. The tribunal noted that Nowicki didn't have a disability when she went on medical leave — her doctor's notes referred to work - place stress and her workers' compensation claim was denied — but she told McKinnon she was depressed and LIUNA knew she was on medical leave, so "given the circumstances she was perceived to have a disability by her employer," said the tribunal. However, the tribunal noted that in the medical information LIUNA had indicated that she was totally disabled and whenever McKinnon tried to communicate with her, she didn't respond. Nowicki didn't explicitly request accommodation and when she re - turned there were no medical restrictions, the tribunal said. The tribunal also found that when No- wicki first raised the issue of her retirement and when she sent her written retirement notice, there was no evidence of a disability. McKinnon's attempts to negotiate different retirement scenarios were reasonable — par - ticularly since LIUNA had already hired a re- placement when Nowicki said she wouldn't be retiring until May 31, 2016 — said the tri- bunal, noting that it isn't age discrimination when an employer raises early retirement in- centives for employees and Nowicki had nev- er changed her retirement date once she set it. "I infer that [Nowicki's] intention to retire on May 31, 2016 remained on April 18, 2016 and she was engaging in negotiations about the financial terms of her employment termi - nation because of retirement," said the tribu- nal. "Her intended date of retirement did not change but rather the parties disagreed on the financial terms of her retirement." For more information, see: • Nowicki v. Labourer's International Union of North America (LIUNA) Local 1059, 2020 HRTO 790 (Ont. Human Rights Trib.). « from EMPLOYER'S on page 1 Supervisor made multiple offers for the worker to retire a few months early CREDIT: JHVEPHOTO iSTOCK The worker learned that she had been put down to retire in January 2016, so she sent a written notice of retirement stating that she planned to work until May 31, 2016.

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