1540-99-ES Zellers Incorporated, Applicant v. Natalie Santos and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 43000783
BEFORE: Anthony Brown, Vice‑Chair.
APPEARANCES: Glenn Christie and Stella Medeiros for the applicant; Natalie Santos on her own behalf; Karima Chatur for the Ministry of Labour.
DECISION OF THE BOARD; July 21, 2000
This is an application pursuant to the Employment Standards Act (“the Act”) for review of an Order to Pay (No. 47740) issued by an Employment Standards Officer.
A hearing was held on July 12, 2000. At the end of the hearing, the Board granted the application for review and rescinded the Order to Pay. These are the reasons for its decision.
The issue in this application is whether the applicant must pay Ms. Santos severance pay or whether it is relieved of this obligation by having made an offer of reasonable alternative employment. After some discussion with the parties it became evident to the Board that they were in substantial agreement about the facts and that the only real disagreement was about the legal conclusion to be drawn from those facts.
The applicant (“Zellers”) owns 3009354 Nova Scotia Co. (“Kmart”). Kmart was the employer of the claimant Natalie Santos.
Natalie Santos worked at a Kmart store at the “Rockwood Mall” in Mississauga. A decision was made to close the Rockwood store and therefore, on March 2, 1998, Kmart gave Natalie Santos notice of termination effective as of May 28, 1998.
On April 8, 1998, the applicant offered Ms. Santos employment at a Zellers store in Sheridan Mall (Mississauga) in the same position and hours as she had worked at Rockwood. The parties agree that this position, which Ms. Santos accepted on April 11, 1998, was as good as (and in some respects better than) Ms. Santos’ position in the Rockwood store. Ms. Santos would have had full recognition of her prior service with Kmart and would have been eligible for superior benefits. Ms. Santos stated, however, that public transportation between her home and the Sheridan location would have been less convenient for her than transportation to the Rockwood location.
On April 13, 1998, Ms. Santos informed Zellers that she had changed her mind and did not wish to work at the Sheridan store. At her request, Ms. Santos was permitted to continue working at the Rockwood store, in a different capacity and with night time hours, until March 28, 1998. Understanding that her job would end on March 28, 1998, she looked for employment elsewhere. Meanwhile, the company decided to keep the Rockwood store open as a clearance centre. The clearance centre did not require a “merchandise mover” but the company was interested in having Ms. Santos stay on in her night position for another two weeks past March 28, 1998. On March 28, 2000, Zellers contacted Ms. Santos and asked her if she would like to continue in the night position for another two weeks. She agreed to do so, although, by this time, she had obtained a day-time babysitting position elsewhere. On June 10, 1998, she advised Zellers that she did not wish to continue her position at the Rockwood store.
Decision
The Board finds that the applicant made Natalie Santos an offer of reasonable alternative employment when it offered her a position at the Sheridan store. As a result, the applicant is not obliged to pay severance pay to Ms. Santos.
A reasonable person in the claimant’s circumstances would consider the advantages of the Sheridan position to outweigh the sole disadvantage, i.e. the inconvenience of having to travel for a longer period of time by bus. Contrary to the determination of the Employment Standards Officer, the “Sheridan” offer was not “erased” by the subsequent events under which Ms. Santos remained at Rockwood. Zellers’ effort to retain Ms. Santos in its employ after she decided not to go to the Sheridan store can surely not be used to negate its original offer. It merely reflects the company’s interest in accommodating Ms. Santos.
DISPOSITION
The application for review is granted and Order to Pay No. 47740 is hereby rescinded.
The Director of Employment Standards is directed to pay out the money held in trust in this matter, along with interest accrued while in trust, as follows:
To: Zellers Incorporated $ 1,224.84
(It appears that Zellers Incorporated made statutory deductions in respect of the Order to Pay, as it was permitted to do. These deductions are, of course, no longer required.)
“Anthony Brown”
for the Board