Elizabeth Anderson v. 507638 Ontario Limited c.o.b. as Corky’s Restaurant and Ministry of Labour
File No.: 2733-99-ES Date: May 25, 2000 Before: Bram Herlich, Vice-Chair
Decision of the Board
1The style of cause is hereby amended to reflect the correct name of the responding party: “507638 Ontario Limited c.o.b. as Corky’s Restaurant”.
2This is an application to review the decision of the Employment Standards Officer to not issue an order in this matter.
3The applicant claims entitlement to 8 weeks of termination pay (plus the vacation pay which would thereby be generated). She had worked for 507638 Ontario Limited c.o.b. as Corky’s Restaurant (the “employer”) at its bar/restaurant operation for some ten years, most recently as a manager.
4On January 3, 1999, the applicant approached Mr. Angelo Peovski and asked whether there was any truth to the rumours she had heard regarding her imminent firing.
5Mr. Peovski testified that he and his (then) partner had had some recent discussions about the possibility of laying off the applicant for the months of January, February and March 1999. He insisted, however, that no final decision had been taken in that regard.
6Returning to the conversation between the applicant and Mr. Peovski, there is a conflict in the evidence regarding Mr. Peovski’s response to the applicant’s question about her imminent discharge.
7The applicant (and her husband, who was present during the conversation) claim that Mr. Peovski responded that, while he was not firing her, he was laying her off.
8For his part, Mr. Peovski asserts that he told her he would never fire her and that, at worst, he would lay her off. He denies, however, that any such decision had actually been taken prior to or effected in the conversation that day. It was his evidence that the applicant, in a fit of frustration, told him in response that she was quitting.
9While this conflict in the evidence is not insignificant, in view of what transpired next, it is unnecessary for me to fully resolve it.
10Returning again to the conversation on January 3, 1999, it is not disputed that the applicant told Mr. Peovski that she wanted 10 weeks “severance” pay as well as her outstanding holiday pay.
11Mr. Peovski agreed to the request. The applicant then prepared her own “papers” (her job duties had previously included the preparation of such documents for other employees). Once completed, these papers were presented to Mr. Peovski for review and signature. Mr. Peovski then signed the applicant’s Record of Employment which indicated she was being laid off and would not be returning to work. He also signed the cheque in an amount in excess of four thousand dollars. The applicant took her papers and cheque and left.
12The next day payment on the cheque was stopped.
13This led to further communications between the applicant (who sought some assistance from the Ministry) and the employer.
14By letter dated February 17, 1999, the employer (through its accountant) advised the applicant that it was prepared to pay her 8 weeks of severance pay as well as accrued vacation pay but that it would not (apart from previously accrued entitlement) pay any vacation pay “on top of” of the severance payment. This “offer” was made contingent upon the execution of a release in the form attached to the letter.
15Although the amount being offered was very close to the amount to which the applicant now claims entitlement, she declined to sign the release. She was concerned that her full entitlement to vacation pay was not being acknowledged and she also objected to certain provisions regarding confidentiality included in the release.
16In response to her refusal to sign the release, the employer (again through its accountant) wrote to the applicant as follows:
Further to our conversation of Friday, February 19, 1999, wherein you refused to sign the release in its current form, 507638 Ontario Limited now takes the position that you quit your employment with the company.
We have been instructed by the company’s solicitor to issue a revised Record of Employment and forward to you your vacation pay of $ 450.00, less statutory deductions ….
[emphasis added]
17The applicant’s accrued vacation pay was provided. However, no revised Record of Employment was issued.
18The issue in this case is whether the applicant quit her employment or was laid off. It was not disputed that if she quit she has no further claim against her employer. Similarly, however, neither was it disputed that if she was laid off such layoff was not a temporary lay off within the meaning of the Act, and the applicant would have been entitled to eight weeks termination pay (plus the vacation pay that would generate) pursuant to section 57 of the Employment Standards Act.
19I note in this regard that the initial references by both the applicant and the employer (through its accountant) to severance pay were inappropriate. If the applicant had been entitled to severance pay, her ten years of service would have entitled her to 10 weeks of severance pay. And while that was the basis for the applicant’s initial request for 10 weeks of severance pay, there is no question that she has no claim to severance pay. Similarly, it was not disputed that if she is entitled to termination pay in lieu of notice, the quantum would be (the maximum entitlement under the statute) of eight weeks pay.
20The case turns on a characterization of the events of January 3, 1999. The applicant asserts that she had no intention of resigning her employment and did not do so. The employer claims it had no (crystallized) intention to lay her off and did not do so. While the parties thus placed much emphasis on their respective intentions when they each arrived at the restaurant on that day, I am simply not persuaded that their respective views are necessarily mutually exclusive or that the resolution of any evidentiary conflict is critical to my determination.
21Whatever the parties’ respective views may have been at the outset or even at various points as their exchange unfolded, the resolution was clear, unambiguous and uncontradicted.
22The applicant was laid off with no return to employment contemplated. There is no evidence that the employer seriously disputed that description in its subsequent dealings with the applicant, until some two months later when it asserted (in what appears to have been little more than a convenient revisionist exercise) that it was now taking the position that the applicant had quit.
23I am satisfied that the applicant was laid off on January 3, 1999. As the layoff was immediately effective she was entitled to pay in lieu of notice.
24The employer is hereby ordered to forthwith pay to the applicant the sum $3,744.00 (8 weeks pay in lieu of notice plus 4% vacation pay).
“Bram Herlich”
for the Board