Canadian Employment Law Today

October 25, 2017

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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©2017 Thomson Reuters Canada 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. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. 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: customersupport. Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Emplo y ment Law Today Canad ad a ian How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Was the couple constructively dismissed? OR Did the couple leave of their own accord? IF YOU SAID the Lawrences were not con- structively dismissed and quit on their own, you're right. e court accepted that Sylvia Lawrence believed she was being treated un- fairly and was singled out by the new ware- house manager when she was given the let- ter of reprimand and resented his assertion of authority over her — as evidenced by her comment that he couldn't tell her what to do. However, that comment and her rudeness towards him constituted insubordination that warranted the reprimand, said the court. e court found that the conditions in the warehouse were "far from ideal" due to the overcrowding, but neither of the Law- rences raised concerns about unsafe or un- sanitary conditions — Ken's email was only about the crowded conditions. When Ken telephoned the company to say they had quit, he made no mention of the conditions in the warehouse. He also provided no evi- dence that anything had changed with his job and he didn't work in the warehouse, so any safety concerns wouldn't apply to him. It was more likely the decision not to return to work was the result of Sylvia's reprimand – which wasn't a justifi able reason to refuse to return to work, said the court. e court determined there was nothing that a reasonable person would conclude that the Lawrences were constructively dis- missed from their employment and it was the couple themselves who terminated the employment relationship. eir complaint was dismissed. "I was provided with no authority in sup- port of the proposition that a spouse is jus- tifi ed in treating his or her employment as constructively terminated as a result of the employer's treatment of the other spouse," the court said. For more information see: • Lawrence v. Norwood Industries Inc., 2016 CarswellOnt 14939 (Ont. S.C.J.). Wife doesn't like schedule change, reprimand; husband walks out with her THIS INSTALMENT of You Make the Call features a husband and wife who claimed their common employer forced them out of their jobs. Ken and Sylvia Lawrence, 56 and 63, re- spectively, both worked for Norwood In- dustries, a company that sells unassembled portable sawmills in Oro-Medonte, Ont. Ken Lawrence was hired in April 1996 and worked in the company's offi ce and Sylvia Lawrence was hired in August 1996 to work in the warehouse. Norwood hired a new warehouse manag- er in early 2012 to help address overcrowded conditions in the warehouse. Ken Lawrence sent an email in March to the senior offi cer over his concern that there was inadequate warehouse space. In April, Norwood decided to move the start time for warehouse employees from 8:30 a.m. to 7 a.m. Sylvia Lawrence wasn't happy about this and told the new ware- house manager that she wouldn't start work earlier than 8:30 a.m. She arrived late for work on May 24 and told the manager that if she came in any earlier she would become ill. e warehouse manager advised Nor- wood's senior offi cer about Sylvia's state- ments and that she had acted rudely to him. e same day, the manager instructed a lead hand to tell Sylvia that her attitude had to change. Sylvia didn't think she had an at- titude problem and said she had been em- ployed with Norwood for "far longer than (the warehouse manager) and he could not tell her what to do." Later that day, the warehouse manager and lead hand met with Sylvia in the parking lot and gave her papers about parts missing from a shipment and a letter of reprimand for insubordination for her to sign, along with a memo regarding any medical concerns over coming to work earlier. Sylvia became upset and said she wouldn't sign anything without reading it and taking time to think about it. Ken Lawrence overheard part of the conver- sation and also was upset. e Lawrences discussed what had oc- curred and the work environment as a whole. ey decided they couldn't continue to work at Norwood. e next Monday, May 28, Ken tele- phoned Norwood and spoke to the accoun- tant/bookkeeper who was responsible for payroll and some HR functions. He said that he and his wife would not be returning to work and when the accountant asked why, Ken responded that it was none of her busi- ness and ended the conversation. e Lawrences fi led an action against Norwood claiming they were construc- tively dismissed based on conditions in the workplace and Ken's complaint about how crowded it was. ey both claimd the ware- house was unsafe and unsanitary in addition to the crowded conditions.

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