Canadian Employment Law Today

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GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations @thomsonreuters.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: Karen Lorimer Publisher: John Hobel Managing Editor: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2015 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 Transfer off er comes after worker accepts job with another employer THIS INSTALMENT of You Make the Call features a worker who claimed constructive dismissal after he accepted other employment before his existing employer off ered him a new position. Scott Lawson was hired as a bus mechanic in December 2000 by First Canada, a Toronto- based charter bus company. He worked in First Canada's garage located in ornhill, Ont., just north of Toronto. He initially lived about 68 kilometres away from the garage, but soon moved closer where his commute was 38 kilometres. Eventually, he transferred to First Canada's garage in Newmarket, Ont., which was only a few kilometers from his home. In January 2012, First Canada announced it had lost a key contract with the municipality of York Region. e contract would end on Feb. 27. Lawson contacted the bus company who won the contract with York Region and applied for a bus mechanic job in Newmarket. e other company off ered him a job and Lawson accepted. Shortly after, on Feb. 7, First Canada off ered him a mechanic position back at the ornhill garage at a slightly less hourly wage — $2.10 per hour less initially — and was unionized — a change from his current non-unionized position. However, the company off ered him a one-time lump sum payment of $4,000 that would make up the wage diff erential for 48 weeks, at which time a small wage increase would make the diff erence $1.75 per hour. Lawson declined the job off er and resigned eff ective Feb. 17. He started working at the new company a few days later. On March 31, First Canada closed its Newmarket garage. All employees there who were not off ered other jobs and worked until the garage's closing date were given termination and severance pay. Some of those employees were hired by the new company for which Lawson had already started working. When Lawson found out about the termination and severance pay his former colleagues at the Newmarket garage received, he fi led a constructive dismissal complaint. Lawson argued that he didn't accept the transfer to ornhill because he would have suff ered a wage loss after 48 weeks, he would have had a longer commute, and he would have to work in a unionized workplace — something he didn't want to do. YOU MAKE THE CALL Did Lawson refuse a legitimate transfer and resign his position? OR Was Lawson constructively dismissed? IF YOU SAID the transfer was legitimate and Lawson resigned his position, you're right. e adjudicator found the wage reduction — which amounted to 5.8 per cent and was delayed by 11 months thanks to First Canada's off er of a lump sum payment — was modest and not a signifi cant change. e adjudicator also found that although Lawson's commute to the ornhill garage would be longer — 38 kilometres each way rather than a few — he had commuted that distance and longer in the past and many people commuted that distance. e adjudi- cator determined that Lawson's commute to the ornhill garage would have been only a few minutes more than the average Toronto- area commuter, according to a study. e adjudicator also found Lawson gave no explanation as to why he didn't want to work in a unionized position and many peo- ple would feel it would be better to be union- ized. It was likely Lawson accepted a job with the new company before he was off ered the transfer because he felt he was avoiding a termination, ensuring he would still have a short commute and keep his same wage, avoid a break in employment, and work with some of the same people. Lawson would also be able to work on the same type of buses since the new company took over the transit contract with York Region. "Mr. Lawson made a sensible and under- standable decision. Anyone in his situation would have made the same choice," said the adjudicator. "However, that is not the test for a constructive dismissal as the issue is not the comparison of the two job prospects ( ornhill with First Canada vs. Newmarket with the new company), but rather whether the job transfer off er of First Canada was comparable to his previous position." e adjudicator found First Canada's transfer off er was reasonable and none of the diff erences it had from Lawson's position at the Newmarket garage made "a fundamen- tal negative change to his employment." As a result, Lawson was not constructively dis- missed, said the adjudicator. For more information see: • Lawson and First Canada ULC, Re, 2015 CarswellNat 1639 (Can. Labour Code Adj.).

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