Canadian Employment Law Today

Canadian Employment Law Today | 9 Canadian HR Reporter, a Thomson Reuters business 2017 Cases and Trends also shunned him. Christie denied asking Lemesani to be his general contractor and said he didn't want to monopolize his time because of his duties with Lowerys. He said the invoice surprised him and it didn't have any details on the work done. ere was no formal agreement be- cause any work Lemesani did was on office time for which Lowerys paid him. Christie also indicated he wasn't Lemesani's man- ager and didn't have the authority or right to threaten Lemesani's job. Other employees testified that Lemesani had a poor attitude towards co-workers and was critical of other sales representatives. Soon after, Lemesani's manager — and Scott Christie's brother — withdrew leas- ing schedules for copiers that had previously been given to Lemesani. His manager said this was for security reasons because the schedules contained sensitive information and Lemesani had been accused of using the schedules to poach clients from other sales representatives. Lemesani was unable to find out when leases expired and what new terms could apply to buy-outs, which he felt hurt his ability to service customers. Leasing schedules were withdrawn for all staff, but Lemesani was the only one who complained. Also soon after the invoice incident, Lem- esani requested four weeks of vacation to go to Panama — normal company policy was a maximum of two weeks at a time. He made the request in November 2010, but his manager took nearly one month to reply. His manager granted the request, but also held back Lemesani's quarterly bonus — it was based on making certain quarterly targets — cancelled out-of-town trips, and forbid him from selling office furniture. Lemesani claimed he was "crushed," but still took his vacation. He said when he returned, the owners treated him coolly. Every summer, the owners of Lowerys held a tennis party at their cottage and Lem- esani was usually invited to cook. However, in 2011, they didn't invite Lemesani and he believed it was because of the invoice dis- pute the previous summer. ough it wasn't a workplace event and there had been a few years previously when he hadn't been invit- ed, he considered it to be workplace harass- ment because it was an opportunity to make contacts and the owners' attitudes bled into the workplace at Lowerys. 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 suffered an acute anxiety attack that necessitated hos- pitalization. His doctor provided a note in- dicating Lemesani would be off work indefi- nitely, though Lemesani didn't say why. He applied for and received employment insur- ance benefits for three months, followed by long-term disability benefits. In January 2012, Lemesani told the bene- fits provider he hoped to return to work with modified duties or a different occupation by the end of the year and Lowerys confirmed it would try to accommodate him. In October 2012, the benefits provider learned Lemesani had been managing five rental homes and running a popcorn busi- ness, so it determined he had demonstrated an ability to return to work. Lowerys had a position available, but Lemesani provided a doctor's note saying he wasn't ready to re- turn to work and he couldn't work around other people because of his anxiety disorder and depression. e benefits provider termi- nated his benefits and, with no further medi- cal information offered, Lowerys terminated his health benefits on June 30, 2013 — it had been paying the full premiums since Lem- esani had been off work. Lemesani sued for wrongful and con- structive dismissal, claiming his anxiety at- tack was caused by continuing harassment he suffered at work from Scott Christie and his brother. He cited the contracting invoice dispute, the cottage party exclusion, the bo- nus alteration, and withdrawal of leasing schedules as incidents of harassment, and also claimed Lowerys withdrew his expense account, which cost him valuable face-to- face time and limited his interaction with clients, and withdrew permission 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 representatives didn't have expense accounts and Lemesani could only expense costs for clients with prior approval. It also said Lemesani only temporarily travelled monthly to other ar- eas 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 his man- ager. Lemesani also reported that his manager directed him not to sell office furniture, which would limit his income. is was another instance of harassment, said Lem- esani. However, the manager stated that Lemesani's assignment was to sell copiers and only sales representatives in remote ar- eas were to sell all product lines. Selling fur- niture took away from Lemesani's time sell- ing copiers and other office machines. e court found there was no workplace harassment, as Lowerys had reasonable ex- planations for all of the situations that Lem- esani claimed were harassment. In addition, Lemesani's claims were inconsistent and not credible. It also found Lowerys was willing to accommodate him when he wanted to return to work, but Lemesani didn't pro- vide medical information or try to return to work as part of the accommodation process — even though he was working in property management and running a business while on medical leave. As a result, there was no basis for human rights or aggravated damag- es — particularly since Lowerys continued to pay health benefits for some time after Lemesani ended his active employment — and Lowerys was only responsible for rea- sonable notice. Since Lemesani had 15 years of service, wasn't a supervisor and was 49 when termi- nated, the court found he was entitled to 10 months' pay in lieu of notice, minus his earn- ings from his own company and his property management work. For more information see: • Lemesani v. Lowerys Inc., 2017 Carswel- lOnt 5767 (Ont. S.C.J.). Employee felt shunned and discriminated against « from BAD RELATIONS on page 3 Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. The blog features topics such as employee personal leaves, definition of the workplace, fixed-term contracts, and workplace harassment. You can view the blog at www.employmentlawtoday.com.

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