Often in employment litigation, disputes are very fact-specific with the employee and employer viewing the situation in completely different ways. For example, an employee may claim that they have been wrongfully or constructively dismissed, while the employer might counter that the employee voluntarily left their employment or that it was entitled to terminate the employee for cause.
As a result, if you are an employer or employee with an employment law issue, it is important to have a strong advocate on your side that will work to deescalate and prevent disputes, while simultaneously preparing for trial.
This article takes a look at the recent decision of the Ontario Superior Court of Justice in Tuinhof v Modern Heating Brandford Ltd., in which the judge described the parties as presenting “two very different tales of competing reality”. While the employee claimed that he was a loyal employee that had been constructively dismissed, the employer said that the employee conducted unauthorized side jobs and that he voluntarily left his employment.
Employee takes leave and does not return to work
The plaintiff employee worked for a small company that operated in Brantford installing, servicing and maintaining heating, ventilation and air conditioning units. He started working for the company as an installer and service technician in 2000.
In March 2019, the plaintiff’s wife sent a text message to the directors of the company indicating that the employee was facing health challenges. He had injured his wrist punching a solid oak cabinet and went off work sick, never returning. He went on EI benefits.
In July, the directors met with the employee twice. They wanted a return-to-work plan and asked him to return the keys to the work van that he had and the cell phone the company provided. They expressed dissatisfaction that the employee was doing unauthorized side jobs but told him that he was not fired.
A few days later, the plaintiff contacted a lawyer who issued a demand letter to the company.
Employee sues for damages for constructive dismissal and breach of the Human Rights Code
The employee claimed that he had been constructively dismissed because taking away the vehicle and phone breached an essential term of the employment contract. In order to establish constructive dismissal, the plaintiff must show that (i) the employer has, by a single unilateral act, breached an essential term of the contract of employment; or (ii) there were a series of acts that, taken together, show that the employer no longer intended to be bound by the contract.
The employee also argued that the employer had discriminated against him on the basis of disability, contrary to the Human Rights Code, and failed to accommodate his disability to the point of undue hardship.
The employer countered that it did not terminate the employee and that he simply voluntarily left his employment and chose not to return. It said that the employee never disclosed what accommodation he might require to return to work. In the alternative, it said that if it was determined that it terminated the plaintiff’s employment, such termination was for cause.
Court finds the plaintiff was not constructively dismissed
Justice Gibson first examined whether the plaintiff had been constructively dismissed by a single, unilateral act. His Honour decided that taking back the vehicle and phone did not breach an essential term of the employment contract. This was because employees of the company did not have a right to a company phone or service truck for private purposes as a condition of employment. The phone and vehicle were to complete work tasks and were not perks.
Secondly, his Honour considered whether there were a series of acts that showed that the employer no longer intended to be bound by the contract. Given that the employee was told he was not fired and that he later even told his doctor he had not been fired, there was no intention of the employer to not be bound by the contract. As a result, he was not constructively dismissed and voluntarily left his employment.
There were grounds to dismiss the employee for cause
In any event, Justice Gibson was satisfied that the employer would have had just cause to dismiss the employee.
His Honour found that he had breached his employee’s duty of loyalty by soliciting business from his employer’s customers for his own benefit. He exposed the company to significant potential liability by affixing gas installation tags that indicated the company as the contractor, meaning the company could have been liable for damages from a faulty installation. The employee had not established that the company had condoned his practice of completing side jobs.
His Honour decided that his misconduct was sufficiently serious that it resulted in a breakdown of the employment relationship, and dismissal would have been a proportionate step.
The employer did not discriminate on the basis of disability
Finally, Justice Gibson decided that the employer did not discriminate against the employee on the basis of a disability. There was no evidence presented of discriminatory actions by the employer. Furthermore, the employee did not participate in the process of accommodation by providing some medical documentation about his problems and any necessary accommodations.
Justice Gibson dismissed the employee’s action.
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