Canadian Safety Reporter

5 Canadian HR Reporter, a Thomson Reuters business 2017 News | August 2017 | CSR Bad relations with co-workers and managers not constructive dismissal Worker had to go off work due to anxiety and stress but crumbling relationships with managers and co-workers not harassment BY JEFFREY R. SMITH AN ONTARIO employee's claims of constructive dismissal and harassment damages based on perceived slights and disen- chantment has been stymied by the Ontario Superior Court of Justice. Michael Lemesani, 56, was hired by Lowerys, a retailer sell- ing stationery supplies, office furniture, copiers and comput- ers in Fort Frances, Ont., in June 1996 to be a salesperson. He started on a three-month pro- bationary period, after which his health benefits kicked in under his employment contract. After six months of employ- ment, Lowerys conducted a performance review. Lemesani's compensation was restructured from salary-only to a combina- tion of salary and commission. He was also assigned specific accounts and territories that would be his exclusively for most products except for commercial copiers and contract furniture projects. In 2001, Lemesani's sales as- signment was changed and he began to sell office machines such as copiers and printers. His salary and bonus increased and he had a new manager. His new employment contract provided for Lemesani and Lowerys to each pay half of the premiums for health, dental, and long-term disability plans. In the summer of 2010, Scott Christie — who was one of Low- erys' four owners and the brother of Lemesani's manager — asked Lemesani for help building his new house. Lemesani had expe- rience has a general contractor, so he agreed to lend his exper- tise but at an additional fee to his Lowerys pay. Lemesani reviewed the plans, obtained quotations for heating, plumbing and electrical contrac- tors and arranged for excavation He also drew up the permits and supervised the foundation con- struction. Lemesani gave Christie an invoice for $5,000, but Chris- tie became angry and accused him of taking advantage of him. Lemesani was shocked and said he wouldn't build the house, but reduced the invoice to $1,400. However, Christie said he wouldn't pay more than $700 and if Lemesani refused to accept that amount, his employ- ment would be in jeopardy. Afterwards, Lemesani said Christie treated him poorly at work and others in the office also shunned him. Christie denied asking Lem- esani to be his general contrac- tor 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. There was no formal agreement because any work Lemesani did was on of- fice time for which Lowerys paid him. Christie also indicated he wasn't Lemesani's manager and didn't have the authority or right to threaten Lemesani's job. Other employees testified that Lemesani had a poor attitude to- wards co-workers and was criti- cal of other sales representatives. Soon after, Lemesani's man- ager — Christie's brother — withdrew leasing 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 Lem- esani 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 abil- ity to service customers. Leasing schedules were withdrawn for all staff, but Lemesani was the only one who complained. Also soon after the invoice in- cident, Lemesani requested four weeks of vacation to go to Pan- ama — normal company policy was a maximum of two weeks at a time. He made the request in November 2010, but his man- ager took nearly one month to reply. His manager granted the request, but also held back Lem- esani's quarterly bonus — it was based on making certain quar- terly targets — cancelled out-of- town trips, and forbid him from selling office furniture. Lem- esani claimed he was "crushed," but 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 Lemesani was usually invited to cook. How- ever, in 2011, they didn't invite Lemesani and he believed it was because of the invoice dispute the previous summer. Though it wasn't a workplace event and there had been a few years pre- viously when he hadn't been Credit: Shutterstock/lightwavemedia Networking > pg. 8

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