Richard Harrington v. Loveday Kitchens and Renovations Inc., 2000 CanLII 13022

Ontario Labour Relations Board

4288-98-ES Richard Harrington, Applicant v. Loveday Kitchens and Renovations Inc. and Ministry of Labour, Responding Parties.

BEFORE: Laura Trachuk, Vice-Chair.

APPEARANCES: Joanne Harrington and Richard Harrington for the applicant; Peter and Gail Loveday for Loveday Kitchens and Renovations Inc.; Frank Camilleri for the Ministry of Labour.

DECISION OF THE BOARD; March 8, 2000

1. This is an application under section 68 of the Employment Standards Act (the “Act”) appealing a determination by an Employment Standards Officer that the applicant was not entitled to termination pay.

Facts

2. The parties presented somewhat different versions of the facts. The applicant testified on his own behalf. Peter and Gail Loveday, the owners, testified for the responding party employer (referred to as the “company”). The applicant is a cabinet maker who was employed by the company for almost seven years. By his own account, Mr. Loveday did not have much success with finding suitable employees but he was happy with Mr. Harrington’s work and they were friends. Mr. Harrington worked in the shop during most of his employment but had done installations on occasion. On June 23, 1998 the two men had an altercation most of which took place without witnesses.

Mr. Harrington claims that Mr. Loveday fired him. Mr. Loveday claims he just told him to go home with pay and cool off for a few days.

3. It is not disputed that Mr. Loveday asked Mr. Harrington to return his key to the shop and leave. It is not disputed that Mr. Harrington would not give up the key and said he wanted to call the “Labour Board” about his rights first. Mr. Loveday then called the police to remove Mr. Harrington. Mr. Harrington returned his key and left before the police arrived. It is also not disputed that Mr. Harrington had another job by that afternoon. The job was a “subcontracting” arrangement which paid considerably less than Mr. Harrington was being paid by Mr. Loveday and had no benefits. The parties also agree that Mr. Loveday called Mr. Harrington the same night and asked him to come back to work. The parties do dispute some of the related facts as well as the interpretation which should be given to the facts.

4. The following is Mr. Harrington’s version of events. He claims that on the morning in question Mr. Loveday asked him to move some bags of salt for the water softener into the basement of his house. Mr. Harrington responded with a comment such as “Would you move salt at my house?” He claims this was a joke and that he did move the salt. He testified that some time later that day Mr. Loveday came into the shop where he was working, asked him to return the key to the shop and told him that he was fired. Mr. Harrington refused to give up his key and said he wanted to call the “Labour Board” about his rights. He went into the office and made a call but could not reach anyone for advice. Mr. Loveday told him that if he did not give back his key to the shop and leave he would call the police. Mr. Harrington responded that he was glad he was calling the police so that they would have a neutral witness. Mr. Harrington also claims that Mr. Loveday said he did not trust him. Mr. Harrington gave back the key and left before the police came. He went home and at approximately 2:00 p.m. looked at the job advertisement section of the newspaper. He saw an advertisement for a cabinet maker at Olympia Cabinet. He called and found out they were still hiring. He went to Olympia Cabinet and was hired on the spot but said he could not work until Monday as he had to collect his tools. That evening Mr. Loveday called him to return to work. He did not testify as to his exact conversation with Mr. Loveday. However, he testified that he did not want to go back to work as he had been fired and told that he was not trusted. He said that he could not work with Mr. Loveday after that. He explained that they lived in a small town and they had been friends and that he would feel as if he were walking on egg shells.

5. Mr. Loveday did not give a very clear description of exactly what was said, by whom and in what order. He testified that Mr. Harrington had been quiet for a number of days. Mr. Loveday appears to have found that suspicious. He claims that he decided on June 23 that he wanted to start working in the shop because he was having trouble with his back and that he decided to send Mr. Harrington out to do installations. Mr. Loveday also testified that he decided to start working in the shop as Mr. Harrington never used the proper guards, footwear or safety precautions. He claims that he therefore went and asked him for his key. His explained to the Board that Mr. Harrington would not need his key if he was doing installations. He said that when he asked

Mr. Harrington for his key Mr. Harrington asked if he was being fired. Mr. Loveday claims that he said no. He testified that he told Mr. Harrington at some point that he was going to do installations. He claims that Mr. Harrington said “What if I go into the shop and hurt myself” so he told him to go home. He said Mr. Harrington was standing closer to him than he could tolerate and that he asked if he was trying to get him to hit him.

Mr. Harrington responded that he “ate bigger guys for breakfast”. Mr. Loveday said that he took that as a threat and called the police. He said Mr. Harrington asked him for a letter saying he was fired but that he would not give him one because he was not fired. Mr. Harrington then supposedly asked for a letter saying that he was not fired and would still have a job the next Monday but that he would not give him that letter either because he was not fired. He asserts that he told Mr. Harrington to go home with pay until the next Monday. However, that night he called Mr. Harrington and asked him to come back the next day. Mr. Harrington said he needed a day to talk about it with his wife and that he would return on Thursday morning. He did not return to work.

6. Gail Loveday testified that approximately a week before June 23

Mr. Harrington asked if he could work in a subcontracting arrangement so that he could also do some work for his brother. He was told he could not work in such an arrangement nor could he do some of the spraying work at night as he had also requested. Ms. Loveday testified that on the day in question, Mr. Loveday called her to the office because “Richard was going crazy” and he had called the police. She went there and told Mr. Harrington to go home with pay and cool off until Monday morning. She testified that he asked for a letter saying that he would still have a job on Monday but that she would not give him one because he was not fired.

7. Both Mr. and Ms. Loveday testified that returning the key was not significant as Mr. Harrington did not need to use it much anyway. However neither of them told him to keep it when he objected to returning it or when he claimed he was being fired.

8. Mr. Harrington argued that he was fired and found a job the same day. He did not want to go back to work for Mr. Loveday after he changed his mind because their relationship had been ruined.

9. Mr. Loveday denies that he fired Mr. Harrington and claims that he only sent him home for a few days with pay. He claims that Mr. Harrington quit because he had another job and he wanted to do subcontracting work.

10. The Ministry of Labour argues that it is too coincidental that

Mr. Harrington found a job the same day as he claims that he was fired, so the Board should find that he quit.

Decision

11. The undisputed facts in this case lead the Board to the conclusion that

Mr. Harrington’s employment was terminated. When an employer asks an employee to return the key to the workplace and calls the police to remove him from the premises, it usually means the employee is fired. Certainly an employee could be expected to understand that that was what was happening. The employer cannot then deprive the employee of termination pay by changing his mind, especially if the employee has found another job. It is undisputed that Mr. Harrington did not want to give the key back and insisted on calling the “Labour Board”. He would not leave until Mr. Loveday called the police. Both of the Lovedays claim he wanted a letter saying that he had not been fired but that they would not give him one. Those facts are not consistent with an employee quitting his employment. They are consistent with an employee being fired. If Mr. Harrington really wanted to quit he would presumably have handed back the key and walked out.

12. What seems most likely in the circumstances is that Mr. Loveday and

Mr. Harrington had an argument. Mr. Loveday told Mr. Harrington in the heat of the moment that he was fired and that he wanted the key back. When Mr. Harrington would not leave, he called the police. That evening, Mr. Loveday, prompted by his wife, realized that he had made a big mistake because he need Mr. Harrington and called him to return to work. However, it was too late because their relationship was ruined and

Mr. Harrington had already found another job.

13. It is coincidental that Mr. Harrington found a job the same afternoon he was terminated. It is also contrary to his interest that he did not bring his new employer as a witness to support his story. Nevertheless, the Board prefers the evidence

Mr. Harrington gave under oath after weighing his testimony and that of the Lovedays according to the usual factors including their demeanor; recollection; ability to resist the tug of self-interest and what makes the most sense in the circumstances.

Disposition

14. For all of the reasons outlined above the Board finds that Mr. Harrington was terminated by Loveday Kitchens and Renovations Ltd. Mr. Harrington is therefore entitled to six weeks pay in lieu of notice of termination pursuant to section 57(1)(f) of the Act plus 4% vacation pay. Mr. Harrington’s uncontradicted testimony was that he worked 44 hours per week. He was paid $18.50 per hour. He is therefore entitled to $4,884.00 termination pay plus $195.36 vacation pay, minus statutory deductions. The Board therefore makes the following order:

Loveday Renovations and Kitchens is ordered to pay to Richard Harrington $5079.36 minus applicable statutory deductions.

“Laura Trachuk”

for the Board