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 (on leave) Acting Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2016 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 12 YOU MAKE THE CALL Did Hicks resign from his employment? OR Was Hicks constructively dismissed? Longer commute doesn't sit well with employee THIS INSTALMENT of You Make the Call features an employee who didn't like the changes in his job after his employer was purchased by another company. Mark Hicks worked as a supervisor for a business called Fruit Farms in Brantford, Ont. Fruit Farms went out of business in 2008 and another company, Flash Freight Systems, purchased its assets and hired Hicks as Brantford Operations Supervisor eff ective Sept. 1. e off er of employment it provided to Hicks stated he would "continue to be responsible for the ongoing daily op- erations at the Brantford location, as well as providing daily direction for administrative personnel working at the Brantford facility. e off er also stated benefi ts would continue without interruption and he would be given a taxable benefi t of $100 every week to cover gas and vehicle expenses incurred while doing job duties. Hicks signed the employment agreement and confi dentiality agreement. After the takeover by Flash Freight Sys- tems, the primary function of the Brantford facility was to facilitate deliveries of goods by a company called Consolidated Freezers for a store delivery program. In August 2009, Consolidated Freezers lost its contract for the program so this function ended. Hicks agreed to take over the day-to-day admin- istration of Flash Freight System's smaller local dispatch operations without objection. is arrangement continued for two years. On July 20, 2011, Flash Freight Systems an- nounced the Brantford operations were no longer sustainable and asked Hicks to report to work at its Ariss, Ont., offi ce. Hicks was re- luctant to make the move as it would increase his commute by 55 km each way, which he claimed would double his driving time. Flash Freight tried to work out an arrange- ment with Hicks over the next few months, including a proposal that Hicks report to Ariss three days a week and work from home the other two days. It was willing to accept this arrangement because Hicks was a val- ued employee, but Hicks didn't respond to this off er. e company then told him it would provide him with a computer and In- ternet support at his home to help make the arrangement work. However, it heard noth- ing from Hicks until it received a request for a reference for Hicks from another employer. By April 2012, the company reached the conclusion that its operations were being impeded by remote working from Brantford and told Hicks it couldn't continue to be kept in limbo. It asked Hicks to report to work in Ariss on April 16 and sent him an off er of employment for the new location. Hicks replied that he was not accepting the change to his employment because it wasn't "practical or reasonable." He didn't sign the off er of employment and didn't report to work the next two days, in either Ariss or Brantford. He then reiterated his re- fusal and requested a record of employment, stating "if I can't work from home or from Brantford as I was hired to do then you need to fi re me." Hicks then fi led a complaint of constructive dismissal. IF YOU SAID Hicks resigned from his em- ployment, you're right. e arbitrator found Hicks was considered a "capable and produc- tive employee" and Flash Freight Systems had no desire to end his employment — this was evident when the company took over the business for which Hicks worked and wanted him to continue in his role at the Brantford fa- cility, and then asked him to transfer to Ariss when operating the Brantford facility became no longer viable. e "friction point" was over the increased driving time and expense Hicks would face commuting to the Ariss offi ce rather than Brantford. e arbitrator also found business condi- tions had changed, requiring Flash Freight Systems to transfer Hicks from Brantford. It brought this to Hicks' attention and tried to work out an accommodation by provid- ing some work-from-home opportunities. However, Hicks remained "silent or non- committal" for months until the company was forced to act. When it received the refer- ence request, that suggested Hicks was tak- ing steps to seek alternate employment, said the arbitrator. ough Hicks would have to drive further to the Ariss offi ce, the impact of this was partly off set by the $100 per week travel al- lowance he received and the fact the com- pany was willing to let him work from home twice per week, said the arbitrator. Ultimately, the arbitrator determined that while Hicks' work location changed, his job duties and compensation did not and the ef- fects of the location change were not enough to constitute constructive dismissal. "In the fi nal analysis, Hicks did not accept the need for him to change locations and his discontent was rooted in the increased travel time and expense to report to the Ariss of- fi ce," said the arbitrator. "While I am pre- pared to concede this may be inconvenient, I am not satisfi ed Hicks has proven the change constitutes a fundamental breach of his em- ployment contract." See Hicks and 1210841 Ontario Ltd., Re, 2014 CarswellNat 5075 (Can. Arb.).

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