Ontario Labour Relations Board
File No.: 2157-99-ES Employment Practices Branch File No.: 50008517
Medallion Meats, Applicant v. Jerry Norris and Ministry of Labour, Responding Parties.
Before: Russell Goodfellow, Vice-Chair.
Appearances: Mirsana Birac and Marica Uzelac for the applicant; Jerry Norris appearing on his own behalf; Alicia Gordon-Fagan for the Ministry.
Decision of the Board; June 28, 2000
1This is an employer appeal from a decision of an Employment Standards Officer requiring the employer to pay termination pay to the responding party employee. I dismissed the appeal at the conclusion of the hearing on June 1, 2000 for the reasons that follow.
2It was the employer’s position that the employee was not laid off as indicated in the Record of Employment but that he had quit. In support of this position the employer introduced a handwritten note, which the employee concedes that he authored, asking the employer’s bookkeeper to prepare his separation papers “as laid off due to a medical problem as he is unable to lift over 20 lbs and there is no light duty work”. The employer’s evidence was that the employee made this request following a conversation in which his manager told him that his hours of work would be reduced. The evidence at the hearing established that the employee had been looking for work elsewhere at the time and the employer now believes that, perhaps for reasons related to an ongoing medical condition, the employee did not wish to continue to work for the employer.
3The employee told a quite different story. He indicated that the employer, through its manager, initially threatened to fire him for comments that the employee says that he had made to customers. When the employee indicated to the manager that the comments were insufficient grounds for discharge and threatened to make certain embarrassing information public, the manager decided to lay him off. At that point, the employee simply asked that the lay-off be for medical reasons and the manager agreed. The employee then put the foregoing instructions in writing to the bookkeeper on the manager’s behalf. In his own evidence, the manager was emphatic that no such conversation ever took place.
4As I indicated at the conclusion of the hearing, I was satisfied that neither party was telling me the whole truth. There were numerous difficulties with both of their stories. For example, the employee was unable (I believe unwilling) to explain why he asked to be laid-off for medical reasons, as opposed to accepting whatever form of lay-off the manager had in mind, and why it was necessary for any note to be written to the bookkeeper given the manager’s daily interactions with her. Similarly, the employer could not explain why, if the employee’s primary concern was a loss of hours, he would quit without having another job to go to. More importantly, the employer: (1) professed to have no knowledge whatsoever as to the circumstances surrounding the preparation of the note; (2) claims to have simply acted on the note without question when it turned up on the bookkeeper’s desk; and (3) made no follow up inquires as to the whereabouts or health of the employee or as to precisely why he was leaving - this, despite the fact that the workplace is a small one and the employee was the longest serving employee of the company and, by all accounts, a friend of both the manager and the owner.
5The most likely explanation as to what actually occurred here flatters neither party. It is that, perhaps partly for reasons of his own and partly because of the announced impending reduction in his hours of work, the employee asked to be laid off for medical reasons so as to enable him to collect Employment Insurance in more favourable circumstances than would have been the case had he been laid-off for a lack of work or if he had quit. The employee could then continue his efforts to find other work after his impending surgery. Perhaps regrettably for the employer, it chose to go along with the employee’s proposal and effected a lay off. It then sought, in the application before me, to be relieved from the legal effects of that lay-off by calling it a “quit”. This, I ruled, the employer could not do. The employee asked to be laid-off and he was laid off. The employer must now accept the consequences of that lay-off. As I indicated at the hearing, the employer could have refused to go along with the employee’s proposal and required him to quit if that was his intention. Having chosen not to do so, the employer is required to pay the employee termination pay in accordance with the provisions of the Employment Standards Act.
DISPOSITION
6My ruling at the hearing dismissing the appeal is hereby confirmed. The parties agreed that the amount payable to the employee is $3,020.16. The employee is entitled to be paid that amount from the funds paid into trust by the employer. The balance will be retained by the Ministry on account of the statutory administration fee.
“Russell Goodfellow”
for the Board