Thoughtless termination provokes damage award

This article was originally published by The Hamilton Spectator.

Todd worked at a landscaping company for 17 years. In his latter years, he worked as a sod cutter. He would start in early June and be laid off at the end of December when the season was over. In his 17th year, the owner got very upset with him. The owner said Todd had been specifically asked to clean up pallets in the sod field before he left that day. The boss claimed that when he inspected it after Todd left, it was a mess and he had to clean it up himself.

Todd was suspended from work without pay and then offered a return to work as a sod layer. That position was not only more labour intensive, it paid less money. In text messages to the boss’ daughter, Todd aggressively questioned why this was happening and objected to his treatment. He claimed he was being bullied and undervalued given his 17 years of service. The boss called him and told him he was the company’s worst employee. It was a one-sided conversation witnessed on speaker phone by Todd’s partner. Todd did send a text, even though all of this had happened, saying he would show up the next day and lay sod as requested.

But then the boss changed his mind and his daughter told Todd they would let him know when something came up for which they could use him.

After 10 days passed, Todd requested that he receive his group RRSP money. The employer later claimed that request was a resignation.

Three weeks after Todd was told not to come back, he was issued a record of employment indicating “shortage of work/end of contract season” and that he was laid off.

The company claimed Todd had actually quit but they filled out the employment record that way so he would have a chance of collecting employment insurance. The problem with such arguments, which I have often heard, is that the employment record is a statutory declaration filed with the government and it is an offence to lie on it. The fact was the company was already advertising for new workers.

Todd filed a termination pay claim with the Ministry of Labour and the company continued to claim it was only a temporary layoff for a shortage of work, even though the season had just begun.

A month after Todd was originally told there was no work, he received a recall to work as a sod layer.

In his response, Todd noted he wasn’t being offered his original job back and he had already been labelled the worst employee of the company. He said he had a new job and, given his treatment, he would not be returning.

The judge at trial found that the suspension itself was a breach of the terms of employment by the employer since Todd had never been given an adequate opportunity to respond to the allegations against him with respect to the messy sod field. Todd was the only one of three employees working on the field the night he was disciplined, and when he was first suspended, he had no idea for how long he was being sent home.

That suspension ended up being a month long before Todd was recalled. He had been called the worst employee by the boss and, for the first time in 17 years, was without work in the middle of the landscaping season.

The judge found Todd had in fact been terminated. Todd was awarded the wages he would have earned over the 12 months from the date of his suspension, which included another 6.5 months during the season in which he was terminated and half a month of wages from the next season. The judge subtracted from that amount the money Todd made at other employment during that 12-month period.

Todd also claimed bad faith damages for the way he was treated in the process of termination.

It was clear the judge was irritated by all the different stories and justifications the employer was arguing at trial. It claimed there was a shortage of work, but it was advertising for more workers. It claimed it was a justified suspension, but it only called Todd back after it received a complaint to the labour board. Added to all of that was the boss’ outraged phone call.

Todd was awarded $15,000 in aggravated damages as Todd had actual medical evidence of the anxiety and depression caused by his treatment from an employer of 17 years. This landscaping company was owned by what was clearly an autocratic and temperamental person who reacted in a knee-jerk way rather than using any real thought process. As the owner found out, that can be a costly character flaw.

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Ed Canning
Ed Canning
P: 905.572.5809