3541-99-ES Ross C. McLean, Applicant v. Mary C. Obermaier and Ministry of Labour, Responding Parties.
Employment Practices Branch No.: 60 007123
BEFORE: Timothy W. Sargeant, Vice-Chair.
APPEARANCES: Ross C. McLean for the applicant; Mary C. Obermaier for the responding party; Laurie Eisenberg for the Ministry of Labour
DECISION OF THE BOARD; October 30, 2000
This is an application under section 68 of the Employment Standards Act, R.S.O. 1990, c.E-14, as amended, (the “Act”)
The facts in this matter are really not in dispute. The employer Mr. McLean has two law offices, one in Chesley and one in Sauble Beach. The former employee Ms. Obermaier was hired at the Sauble Beach office May 9, 1990. By letter sent September 1, 1999 Mr. McLean notified Ms. Obermaier that her “employment with me will terminate in six months, that is, your last day of work will be Tuesday, February 29, 2000”. In the meantime starting on Tuesday, September 7, 1999 she was to report to work at the Chesley office and “somebody else will be taking responsibility for the Sauble office”.
Ms. Obermaier alleged that she had been constructively dismissed and was entitled to termination pay.
The letter sent to Ms. Obermaier September 1, 1999 provided:
Mary:
For some time now, you have been seeking other employment. You have contacted a number of prospective employers, and last April, I allowed you to take a work placement with the Board of Education in hopes of that turning into a full time position at the school. However, as you have not yet found another job, and as there are numerous problems that I do not see ever being resolved, I am now putting a time limit on your employment with me. Even thought you still may not have another position by then, your employment with me will terminate in six months, that is, your last day of work will be Tuesday, February 29, 2000.
Because it would not make sense for an employee pending termination to be unsupervised and solely in charge of part of a business operation, starting Tuesday, Sept. 7, 1999, someone else will be taking responsibility for the Sauble office. You are to work in Chesley. In order that this decision not result in any impact on your time or your finances, you will not be required to report for work until 9:30 a.m. and you may leave work at 4:30 p.m. In addition, you will be paid mileage (90 km. round trip - $22.50) each day you are at work throughout this six month period.
As you will only be working in Chesley, and only then when after the office has otherwise opened, please immediately return your office keys for both offices. If you wish to take off tomorrow and Friday to get adjusted to this arrangement, you may do so. The time will not be deducted from your pay or holiday allocation.
The evidence established that the drive between the two offices took approximately 30-45 minutes. Up to September 1, 1999 Ms. Obermaier was the sole staff member at the Sauble Beach office. At Chesley there were two staff members. Again, from the evidence it is clear that the majority of the work done at the Sauble Beach office involved real estate work. At Chesley though there was a significant amount of real estate, in addition there was corporate, family and litigation work conducted at such office. There was a computer link between the two offices and files were easily transferable. The bookkeeping was done at the Chesley office.
Without reviewing the evidence in great detail there is no dispute that Ms. Obermaier was hired to work at the Sauble Beach office. Though she may have stopped on occasion at the Chesley office to pick up filings, she was never assigned to such office prior to the letter dated September 1, 1999.
Again, it is clear from the testimony that Ms. Obermaier was the sole staff at the Sauble Beach office, opened and closed the office and generally ran the office from a legal clerical standpoint. Thus she would open real estate files, send notices for taxes, prepare the documents (occasionally preparing agreements of purchase and sale). Ms. Obermaier did testify that she was rarely involved in actual closings as they were either attended by Ms. McLean or another staff member from Chesley. She had attended on an occasional closing when these two persons were unavailable. She, however, did the majority of the Lease Land transactions involving the Sauble Beach office. She also handled the general office duties, telephone reception, filing, banking and petty cash at the Sauble Beach office. She was responsible for trust funds at that office as Mr. McLean had presigned trust cheques. In real estate matters she would in the majority of cases have the first client interview and follow up with the client, finally distributing the keys on a purchase and sale. For the first couple of years Mr. McLean would be there on Tuesday and Thursday afternoons. This became less and less frequent so that by September of 1999 he was only visiting the Sauble Beach office two hours a week at best. The summer was the busy time as the area is a summer recreational area. Ms. Obermaier testified that she put in long hours during the summer and did have some student help in the summer period for the last two years. She did receive compensation for overtime hours.
It is evident that, as Mr. McLean candidly testified, that Mr. McLean became dissatisfied with this relationship at Sable Beach office and felt he needed somebody at such office with more of a legal secretarial background. Though Ms. Obermaier was in his words a hard worker, her abilities in his view were not as high as other staff. He knew that Ms. Obermaier would be upset at being informed she was to be transferred to Chesley. Mr. McLean as is evident from his letter to her, was prepared to pay for driving time from Sauble Beach to Chesley. He also was prepared to have Ms. Obermaier perform her normal work, only at the Chesley office were she would be under more supervision. He determined that the fairest method would be to give Ms. Obermaier six months notice so that she would have income basically over the winter months and could look for new employment in the summer months when work opportunities were higher in the Sauble Beach area. He did not want her working in the Sauble Beach office during this six month notice period, as he knew she would be upset and didn’t want any potential problems arising with clients.
Ms. Obermaier testified that she did not wish to go to the Chesley office. She felt she had been terminated. At Sable Beach she could bicycle to work or snowmobile. She had an old car and did not wish to travel in the winter. Further she was upset that supervision would be imposed at Chesley and that “the prestige of her job would be gone”.
All parties argued on the basis of section 57(13) of the Act. This section states:
(13) Where the notice referred to in subsection (1) or (2) has been given,
(a) no employer shall alter the rates of wages or any other term or condition of employment of any employee to whom notice has been given;
(b) an employer shall pay during the period of notice,
(i) the wages the employee is entitled to receive, which in no case shall be less than his or her regular wages for a regular non-overtime work week, and
(ii) those contributions to be made with respect to a fund, plan or arrangement to which Part X applies in order to maintain the benefits to which the employee is entitled; and
(c) upon the expiry of the notice, the employer shall pay to the employee any wages or vacation pay to which the employee is entitled.
Though Mr. McLean conceded that the conditions of employment had been altered, he argued that a literal interpretation of section 57(13) could lead to an absurd result (i.e if wages were increased on notice, for example, the section could kick in). In such circumstances the Board should determine if his actions were reasonable in the circumstances. In his submission his actions were reasonable and therefore his appeal should be successful.
Counsel for the Ministry argued that clearly on its wording section 57(13) applied. There was an alteration of working conditions and therefore a breach of section 57(13) of the Act. In the circumstances the Order to Pay should be upheld.
If section 57(13) applied I would have no trouble in finding that the employer in this instance has breached section 57(13) of the Act. Certainly on these facts an absurd result would not entail. Equally clearly there had been a change of working conditions. There is however some question in my view as to whether section 57(13) is applicable in this situation.
In any event on these facts I would find that Ms. Obermaier is entitled to termination pay under section 57 of the Act. Though one can readily understand the actions of Mr. McLean and his attempts to be fair, the assignment to the Chesley office from an unsupervised position to a supervised position, from a location within bicycle distance, to a position some distance away would clearly be a major change in assignment. It was evident that Mr. McLean’s faith in Ms. Obermaier to run the Sauble Beach office on her own had been lost. On these facts the Board has no trouble in finding that Ms. Obermaier was constructively dismissed by the letter of September 1, 1999 and therefore terminated within the meaning of the Act. The assignment to Chesley was to start on September 7, 1999. Appropriate notice, under the Act, runs from such date.
DISPOSITION
- I therefore confirm the Order to Pay and direct the director of Employment Standards to pay the monies to Ms Obermaier and the Consolidated Revenue Fund.
“Timothy W. Sargeant”
for the Board