Canadian Employment Law Today

March 10, 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 President: Tim Duce Editor: Jeffrey R. Smith Email: Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: Phone: (416) 644-8740 x 236 NAUK Subscriptions Co-ordinator: Donnabel Reyes Email: Phone: (647) 374-4536 ext. 243 THIS INSTALMENT of You make the Call in- volves a dispute over whether a school bus driver was terminated or temporarily laid off. Stock Transportation is a bus company servicing mostly schools and camps. Its bus drivers transport children to and from school during the September-to-June school year, with some work available in July and August when summer camps operate. Stock generally laid off drivers during the summer and they could volunteer to work either the full summer or part of it. The worker was a bus driver for Stock start - ing in 2009 and worked with the company for 10 years. In early August 2019, he was driving a summer route when Stock's general manager confirmed his route for the upcom - ing school year. However, on Aug. 15, after completing his morning route, the GM told him that she had received complaints about his attitude and comments he had made. The worker acknowledged making the comments and the GM told him that it was best for him to go home and take the rest of the summer off. The worker said he would be taking vaca - tion from late August to late September — al- though there was a vacation blackout period for drivers in September — so the GM told him to call her when he was back. The worker then responded that he would take his vaca - tion early. The GM informed the operations special- ist that the worker was on vacation effective immediately and the operations specialist placed him on layoff status. As August progressed, the worker wanted to know his bus number for the school year and when he could pick up the bus, so he tried to get in touch with the GM. He called her 10 times and left six messages over the two-week period from Aug. 15 to 30, but the GM didn't respond. He also had a friend and former colleague call the GM several times and leave multiple messages. The GM denied receiving any calls or messages from him. By Aug. 30, the worker hadn't heard any - thing about his bus, so he went to Stock's office to pick it up. However, the reception- ist told him she thought that he had been dismissed and the GM was on vacation. The operations specialist was contacted and she also said that she thought the worker had been dismissed. The worker asked for the reason for termi - nation that was indicated on his record of employment (ROE), but the operations spe- cialist couldn't find the ROE. Later that day, Stock issued an ROE that stated the reason for its issuance was "shortage of work/end of contract or season." The worker considered his employment to be terminated and went on vacation on Sept. 9. On Oct. 1, his legal counsel wrote to the employer requesting pay in lieu of no - tice of termination. Three weeks later, Stock responded that it didn't dismiss the worker and suggested he contact the GM for his re- turn to work. However, the worker felt he had been terminated for two months and the of- fer wasn't made in good faith — Stock didn't indicate what bus route would be assigned to him — so he didn't contact the GM. He felt she wouldn't call him back anyway. The worker filed a complaint for pay in lieu of reasonable notice of dismissal, claim - ing he was laid off when his route was can- celled on Aug. 15, but Stock claimed it had only temporarily laid him off and he had been expected to return in late September after his vacation. YOU MAKE THE CALL Did the employer terminate the worker's employment? OR Was the worker temporarily laid off? IF YOU SAID the worker was temporarily laid off, you're right. The Ontario Labour Relations Board didn't accept the worker's claim that he called the GM, as she denied receiving any calls or messages. The board also thought it strange that the worker didn't try another method, such as email, to con - tact the GM or try to contact someone else in Stock's office if he left messages that were unanswered. The board also noted that the worker didn't try to clarify his status after hearing on Aug. 30 that he had been terminated. This supported the finding that he was on vaca - tion and not available to work in September, said the board. The board also found that Stock expected the worker to get in touch when he was back from vacation, which he never did. Stock re - iterated its position when the worker's coun- sel sent a letter claiming he had been termi- nated, inviting him to return to work. Once again, the worker chose not to respond. The board determined that Stock didn't terminate or constructively dismiss the worker. In addition, Stock invited him to return to work well before the expiry of the 13-week maximum for a temporary layoff, which would have been Nov. 14, 2019. For more information, see: • Sendel v. Stock Transportation, 2021 Car - swellOnt 312 (Ont. Lab. Rel. Bd.). A fork in the road between termination and layoff

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