I was recently asked by a employer whether or not they can post ad ad for a job on workoplis.com before they terminated their employee. What a loaded question. The answer is well, obviously no, especially in his case, because they were not going to allege cause.  In this post I refer to a case called Patterson v. Lee Munroe Chevrolet. This is a case where there was a communication breakdown that began with the employer posting an advertisement…and the plaintiff finding it. The situation led Judge Kent noted in this case that a lack of communication between the plaintiff and the defendant apparently destroyed their employment relationship. The plaintiff claimed that  the defendant wrongfully terminated the employment relationship and sought damages resulting from the termination. The issue in the case was whether or not the plaintiff was constructively dismissed. The evidence was fairly straightforward. The plaintiff started work in January of 1995 as the service manager and his final day was May 23, 2006. During the afternoon of 23 May, 2006 the plaintiff attended a management meeting. He finished the day at approximately 7:00 p.m. after a training session with a service advisor.

The following day, the plaintiff’s spouse, Tracy Patterson, telephoned Lee Munro Chevrolet Ltd. on 24 May, 2006 at approximately 8:15 a.m. and advised a co-worker of the plaintiff, that he was not well and that he would not be in to work that day.

Later on 24 May, 2006 the plaintiff’s spouse again phoned and advised Debra Beaumont that the plaintiff would not be in to work on May 25 and probably not on May 26 either. She advised that the Plaintiff was not feeling well. Surprisingly, at no later than 4:00 p.m. on 25 May, 2006 Lee Munro, the dealer principal of Lee Munro Chevrolet Ltd. arranged for an advertisement to run in the Hamilton Spectator for the position of service manager. The plaintiff’s spouse on attended at the premises of the defendant and confrontation Lee Munro. The next day the Plaintiff’s spouse attended at the premises of the defendant and a further confrontation ensued when she attempted to leave a note from a doctor that the plaintiff had seen on May 25th. Later on May 26th Tracy Patterson sent that note dated May 25, 2006 to the defendant via fax. There was never any written or oral resignation communicated by the plaintiff to the defendant or vice-versa. The advertisement had a very hurtful and emotional effect on the Plaintiff. Someone brought the advertisement to the plaintiff’s attention on the day it was published, 27 May,  2006. The plaintiff noted that “he was shattered”, “he was no longer welcome” “he felt no longer wanted”  and “he didn’t want to speak to anyone at Lee Munro”. Tracy Patterson  described her spouse upon reading the advertisement as confused, upset, hurt and betrayed.

THE DEFENDANT’S ARGUMENT

Lee Munro testified. He agreed that although advertising the position of an employee off sick for just 3 days would ordinarily be disruptive to that employee’s existence, he did not believe that would have been the case with the plaintiff. The approach of Lee Munro was intersting. He had come to believe that the absence had been pre-meditated as part of a scheme for making a claim or claims of wrongful dismissal and/or disability and that Franklyn Patterson would not be returning to work. He felt that the plaintiff’s claim of illness was not credible. He was pushed toward his belief by the information that he had acquired about Tracy Patterson’s situation. He had heard that Tracy Patterson received long-term disability payments. Tracy Patterson confirmed, when she testified, that she was receiving long-term disability and was also n receipt of a Canada Pension Plan Disability Pension. Lee Munro testified that he had concluded that Tracy Patterson was a “schemer” who wanted her husband out of his job and on to a disability plan that had recently been initiated by the defendant.

Judge Kent held that Lee Munro was an impressive and apparently credible witness and this court is prepared to accept that his belief was genuinely held. But,unfortunately for him, Munroe’s testimony was supported by evidence. His theory was based upon speculation, gossip and water-cooler conversation.

THE EFFECT OF THE TERMNATION ON THE PLAINTIFF

The devastation felt by the plaintiff is clear from his own evidence and to some extent corroborated by the doctor’s notes provided in exhibit. The plaintiff received employment insurance sick benefits for a 17 week period. He saw a psychologist for a period of 6 to 9 months and was prescribed medication for depression, anxiety and sleep difficulties.  Based on the foregoing evidence, this court found that the plaintiff was genuinely ill and unable to work at the relevant period of time. The defendant replaced him on or about 21 June 2006 and on 23 June 2006 the plaintiff’s counsel wrote to the defendant setting out the plaintiff’s claim.

THE CONSTRUCTIVE DISMISSAL

An employer owes a duty to its employees to treat them fairly, with civility, decency, respect and dignity. The Judge noted that there are situations when an employer, although not intending to change the employment contract, creates a situation in which it is untenable for an employee to continue in the employment relationship. Such conduct on the part of an employer can properly be regarded as constructive dismissal of the employee.

Specifically, he noted that “An employer who subjects employees to treatment that renders competent performance of their work impossible, or continued employment intolerable, exposes itself to an action for constructive dismissal. Where the employer’s treatment of the employee is of sufficient severity and effect it will be characterized as an unjustified repudiation of the employment contract. Whether such treatment is viewed as a breach of a specified fundamental implied term of the employment relationship or as a repudiation of the entire employment relationship the result is the same. The  employee is entitled to treat the employment contract as at an end, and to recover, at least, damages in lieu of reasonable notice.”

WHAT ABOUT THE ADVERTISEMENT?

With respect to the advertisement, the Judge noted the case of Tolman v. Gearmatic Company, where it was found that an employer who posted a notice that an employee had resigned was found to have constructively dismissed that employee. Judge kent noted that “Lee Munro may not have anticipated that advertising Franklyn Patterson’s service manager position as he did would create a situation which would be untenable for the  plaintiff. After the fact correspondence concerning “an equivalent position at similar compensation” is capable of supporting that state of mind and anticipation. Viewed  Ojectively, however, the Judge was driven to the inescapable conclusion that the placing of the advertisement for the position without providing any explanation or even  informing the plaintiff that it would be published was conduct rendering the continuation of Franklyn Patterson’s employment untenable. At that point, the plaintiff was  constructively dismissed by the defendant.”

THE DEFENDANT TRIED TO ARGUE CAUSE:

Counsel for the defendant articulated a number of grounds that he submits, as an alterative, were cause for dismissal in any event. These include: a) performance issues; b) insubordination; c) not indicating a return to employment date; d) not responding to an offer of an equivalent position, and e) commencing this action for unlawful  termination. Non of the above were supported by evidence. The performance and insubordination issues are all arguable on the evidence and would not support a finding of cause in any event, even cumulatively.

DAMAGES:

Counsel for the plaintiff submited that as an employee in a management position for more than 11 1/3 years the plaintiff should receive 12 months pay in lieu

of notice. Counsel for the defendant counters that the correct period should be 11 months. Because, as has often been said, fixing the notice period is as much an art as it is a science, it is hard to argue with either counsel’s position. Judge Kent split it at 11 ½ months.

The plaintiff’s damages were therefore:

a) salary, 11.5 x $2,816.66 = $32,391.59.

b) commission 11.5 x $3,250.00 = $37,375.00;

c) deduct adjustment 11.5 x $134.06 – $1541.69;

d) deduct indebtedness – $527.22;

Total $67,697.68.

If you have any questions please do not hesitate to contact matt@employment-law.ca or matt.lalande@haber-lawyers.com for more information.