Janice Jones v. Curzons Management Associates Incorporated and Ministry of Labour, 2000 CanLII 12776

Ontario Labour Relations Board

Parties and Appearances

3194-98-ES Janice Jones, Applicant v. Curzons Management Associates Incorporated and Ministry of Labour, Responding Parties.

BEFORE: Timothy W. Sargeant, Vice-Chair.

APPEARANCES: John Brookes and Janice Jones for the applicant; no one appeared on behalf of the responding party; Frank Camilleri for the Ministry of Labour.

DECISION OF THE BOARD; February 8, 2000

Decision

1. This is an employee appeal brought pursuant to section 67 of the Employment Standards Act (the “Act”)

2. The employee is claiming termination pay and severance pay from the employer. This claim was not granted by an Employment Standards Officer.

3. A hearing into this matter was scheduled and held on February 3, 2000. No one appeared on behalf of the employer. There was no indication on the file that the employer’s Notice of Hearing had been returned or that the employer had requested an adjournment. The hearing did not commence until 10:15 a.m. and still at that time, and throughout the hearing, the employer or a representative had not appeared.

4. An appeal of this nature is a hearing de novo. As such the Board is only entitled to rely on evidence that is presented through direct testimony at the hearing. This is especially important in the outcome of this proceeding as the Board in this instance (unlike the Employment Standards Officer) did not have the benefit of any evidence from the employer. In the circumstances the evidence of the appellant must be considered as unchallenged and uncontradicted by the employer.

5. The appellant (“Ms. Jones”) worked for the employer for a little over eight years. The employer operates a number of fitness centres. Ms. Jones during the course of her employment worked at the Etobicoke Fitness Centre.

6. Ms. Jones was an Administrator/Receptionist at this Centre. As such her hours were from 6: a.m. to 2:00 p.m. She would open the club, greet members, book squash and fitness appointments, deal with membership, enter new memberships on the system, and deal with membership fees. She was paid $520.00 a week.

7. The General Manager of the Etobicoke Centre at the relevant time was Ms. Carolann Burley. According to Ms. Jones their relationship was a normal employer – employee one, and they got along well.

8. On Thursday evening January 22, 1998 at approximately 6:00 p.m., Ms. Jones called Ms. Burley from her house and told her that she was ill. Apparently, Ms. Jones suffers from panic attacks and anxiety disorders and is under medical supervision for such illness. She has suffered from these attacks for some fourteen years. Ms. Jones was suffering from such an attack on Thursday evening and thus informed Ms. Burley that Ms. Burley should make alternative arrangements for the club to be opened at 6:00 a.m. Ms. Burley had been Ms. Jones manager for the past two years, and this was the first time Ms. Jones had phoned in to Ms. Burley that she would not be able to attend work and open because of illness. Ms. Burley told Ms. Jones that she would phone back in one hour.

9. Ms. Burley did call back in approximately an hour. She told Ms. Jones not to take the Friday off as another employee was already sick. Ms. Jones told Ms. Buckley she was ill and would not be in for work Friday. Ms. Buckley than told her “if you are not coming in on Friday, do not come back”.

10. Ms. Jones testified that she had never heard Ms. Burley so forceful or unpleasant, that Ms. Burley had not talked to her like that previously. From the tone of Ms. Burley’s voice, Ms. Jones understood that if she did not come into work on Friday she was terminated.

11. The next day Friday, January 23, 1998 Ms. Jones was still ill (in fact so ill that her husband stayed home with her) and did not report to work. Earlier around 4:00 a.m. she had called the cleaner. The cleaner worked from 2:00 a.m. to 10:00 a.m. Accordingly to Ms. Jones her understanding with Ms. Burley was that she would call the cleaner and he would do the opening duties for the club. Ms. Jones had previously trained the cleaner in this procedure.

12. On the Friday nobody from the Company contacted Ms. Jones. Nobody contacted her Saturday or Sunday, her regular days off. On Monday, January 26, 1998 Ms. Jones did not report to work at 6:00 a.m. as she felt she had been terminated. She did go to the Etobicoke Centre around 10:00 a.m.. Ms. Burley was not there. She turned in her keys and parking pass to the salesman, receiving a signed acknowledgement.

13. Ms. Jones however did, however, on the Friday call her former manager Ms. Karen Rooney, who worked for the employer as the General Manager at the Yorkdale location. Ms. Jones called Ms. Rooney as she was upset and explained to Ms. Rooney what had happened. Ms. Rooney told Ms. Jones that she had spoken to Ms. Burley and Ms. Burley had told Ms. Rooney that she told Ms. Jones if she did not come in the next day not to bother showing up for work again.

14. Apparently the gist of the statements by Ms. Burley were also confirmed to Ms. Jones by an Investigations Officer assigned to an Unemployment Insurance Claim by Ms. Jones. Originally Ms. Jones had been denied benefits, but ultimately was successful in her appeal.

15. On Friday, January 23, 1998 after turning in her keys and pass Ms. Jones had proceeded to the employer’s head office on Dixie Road. She met with Mr. Vijay who was in charge of payroll. Ms. Jones told him she had been dismissed by Ms. Burley and explained what obligations were due to her because of the termination. Mr. Vijay told Ms. Jones that “by not showing up on Friday as instructed by Ms. Burley she had neglected her duties and had quit”.

16. As stated previously, nobody from the Company contacted Ms. Jones on Friday, Saturday, Sunday or Monday. Apparently on Tuesday, January 27, 1998 Mr. Thomas a part owner of the employer phoned Ms. Jones and told her that Ms. Burley had not fired her. He offered her alternative employment at the Sussex Fitness Club and asked her to call him back. She could not bring herself to do so, but she did deliver a letter to the employer dated February 2, 1998 refusing the position.

17. The alternative job offered the same pay and hours. Ms. Jones, however, would be expected to do sales as well. Ms. Jones did speak to the General Manager of the Sussex Fitness Centre who apparently was upset that the employer had offered this position to Ms. Jones as there was somebody already in the position. In any event Ms. Jones felt the offer was a demotion as she had worked in the Etobicoke Fitness Centre for eight years and such Centre was considered the most prestigious Centre. In contrast in Ms. Jones’ view the Sussex Fitness Centre was a vastly inferior facility

18. The Board was presented with a doctor’s certificate verifying that Ms. Jones was unable to work on Friday, January 23, 1998 as “her anxiety level was extremely high”.

19. The employer was put on notice that Ms. Jones was seeking severance pay. The evidence before the Board is that this is a large employer with at least twenty different locations. The Board without contradictory evidence is satisfied on the best evidence before it that the Company has a payroll of at least $2.5 million or more.

20. The issue before the Board is whether the employer-employee relationship had ended at least by Monday, January 26 1998. If so, had Ms. Jones quit or been terminated by the employer. If the later (i.e. termination) than Ms. Jones would be entitled to both termination pay and severance pay.

21. If on the other hand, the employment relationship was not terminated as of Monday, January 26, 1998, then was the offer of employment at the Sussex Fitness Centre an offer of reasonable alternative employment within the meaning of section 58(6)(a).

22. Having heard no evidence from the employer and thus having to rely solely on the testimony of Ms. Jones, I have come to the conclusion that Ms. Jones was terminated from her employment and is entitled to both termination pay and severance pay.

23. I have come to this conclusion somewhat bothered by the lack of evidence on behalf of the employer. Clearly on the evidence presented, Ms. Jones did not quit her employment. She never indicated to anybody that she had quit and there is just no evidence to support such a conclusion. On the other hand from the evidence given by Ms. Jones both the employer and the employee had come to the conclusion on Monday, January 26, 1998 that the employment relationship had ended. Mr. Vijay clearly indicated to Ms. Jones that she had “quit” by not reporting to work – i.e. in the Company’s view the employment relationship had ended.

24. Ms. Jones had a legitimate reason to be absent on Friday, January 23, 1998. From the statements spoken to her by Ms. Burley, and confirmed to her by Ms. Rooney, it is reasonable for Ms. Jones to conclude that as she had not reported to work on Friday, January 23, 1998 she was terminated. It is significant that there is no contact by the employer on Friday, Saturday, Sunday or Monday to refute this conclusion. Further there is no contact on the Monday when she turned in her keys and parking pass that she had not been terminated. In fact the payroll administrator, Mr. Vijay is aware of the situation and took the position when confronted that she had quit. There is no suggestion by Mr. Vijay that she is still an employee, quite to the contrary.

25. Mr. Thomas’s statements are after the fact and after Ms. Jones has told Mr. Vijay of the obligations owed to her by the employer. Though it may be an attempt to undue what has occurred, the Board has concluded that the offer by Mr. Thomas may only be considered as a new offer of employment after a termination. Ms. Jones was under no legal obligation to accept such an offer. Further there is no duty under the Act to mitigate either severance or termination entitlement.

Disposition

26. The Board has therefore concluded that Ms. Jones was terminated by the employer and as stated before is entitled to termination and severance pay under section 57 and 58 of the Act. Ms. Jones is entitled to 8 week termination pay being $4,160.00 (8 weeks x $520 weekly salary) and 8 weeks severance pay being $4,160.00 (8 weeks x $520. weekly salary). She is also entitled to vacation pay of 4% on the amount awarded for termination pay, being $166.40. In total the employer is directed to pay to Ms. Jones the sum of $8,486.40. forthwith.

27. Just prior to the release of this decision the Board received a letter from Mr. Thomas dated February 4, 2000 stating:

I am writing to apologize for not turning up to the hearing on Feb. 3rd for the simple reason I had marked the date in my 1999 diary and did not transfer it to my 2000 diary received the notice last August 1999.

I am not sure what happens now, as his was the first time we have had a hearing but was advised to write to you to request another date.

Again I apologize for the confusion.

Unfortunately for the employer, the hearing did take place and evidence and arguments were heard. The grounds advanced by Mr. Thomas (namely a personal error) are not sufficient grounds for the Board to re-open the matter.

“Timothy W. Sargeant”

for the Board