3361-99-ES Jeanette M. Parker, Applicant v. W. E. Roth Construction Limited. and Ministry of Labour, Responding Parties.
Employment Practices Branch File No.: 33 001492
BEFORE: Gail Misra, Vice-Chair.
APPEARANCES: George C. Parker and Jeanette M. Parker for the applicant; Scott Brown for the employer; L. Eisenberg for the Ministry of Labour.
DECISION OF THE BOARD; September 29, 2000
This is an employee request for review of an Employment Standards Officer’s decision denying her claim. It is made pursuant to section 68 of the Employment Standards Act (the “Act”).
Ms. Parker claims that she had applied for and been granted time off for illness. Thereafter, she claims that the employer (“Roth Construction”) terminated her employment without providing her with notice of termination or pay in lieu of that notice. She is therefore seeking termination pay.
Ms. Parker was employed at Roth Construction from February 11, 1997 until September 10, 1999 in the position of a full-time bookkeeper. On Friday September 10, 1999 she and her husband went into the office and spoke to the office manager, Ms. Bakunowicz, to request that Ms. Parker be allowed time off due to an unspecified illness. Ms. Parker also requested that she be given her Record of Employment (“ROE”) so that she could claim Employment Insurance sick benefits. Ms. Bakunowicz agreed and prepared the ROE, indicating that $946.00 was still due to Ms. Parker for vacation pay.
The applicant and her husband then waited to meet with Mr. Roth, the owner of the company, to talk to him about her request. They met with Mr. Roth and explained that Ms. Parker needed sick leave and that she didn’t know when she would be back to work. Mr. Roth seemed concerned about her well being and told her that she should keep in touch with the office manager about when she could return to work. Neither Mr. Roth nor the office manager asked Ms. Parker to produce a note from her physician.
On the following Monday, September 13, 1999, Ms. Bakunowicz called Ms. Parker at home to find out if she had a specific return date. Ms. Parker explained that she did not because she had not seen her doctor again since the Friday before. According to Ms. Bakunowicz, Mr. Roth had apparently contacted his accountant, Mr. Saul Ackler, to see if he could provide a temporary replacement for Ms. Parker, but no one was available. The office manager told Ms. Parker that on Friday afternoon Mr. Roth had asked Ms. Bakunowicz to place an advertisement in the newspaper seeking a replacement for Ms. Parker as he was not interested in hiring a temporary worker. Ms. Parker was taken aback by the turn of events and asked if she could get her vacation pay sent to her, as she believed her employment was being terminated. Ms. Bakunowicz agreed to send out the vacation pay.
On Tuesday September 14, 1999 there was an advertisement in the “Oshawa This Week” newspaper seeking someone to fill an accounting position at Roth Construction. The advertisement was exactly the same as the one Ms. Parker had responded to in January 1997 when she applied for the job at Roth Construction. The September 1999 advertisement made no mention of the position being a temporary one.
Thereafter Ms. Parker received a cheque dated September 16, 1999 from Roth Construction for $665.43. The pay stub indicated that it was for “Separation Pay” in the amount of $946.00 (less statutory deductions), which was the exact amount owed to Ms. Parker for vacation pay. Mr. Roth had signed the cheque.
From all of the communications she had had with Roth Construction after September 10, 1999, Ms. Parker surmised that her employment had been terminated. Therefore, in October 1999 she made a claim through the Ministry of Labour for termination pay. On January 19, 2000 Ms. Parker was advised that her claim had been declined because the Officer was of the view that the employer had not terminated her employment, and that there had simply been a miscommunication. In his letter to the employer, the Officer indicated that the employment relationship had ended, but that there was no evidence to support a finding that the employer had terminated Ms. Parker’s employment.
At no time did Roth Construction contact Ms. Parker to ask her when she was coming back to work, or indeed to talk to her about the apparent miscommunication. It was not until some time after the applicant had filed this appeal that Roth Construction wrote to her on May 3, 2000 indicating that her employment had not been terminated. She was asked to advise the employer within ten days whether she still wanted to return to employment as the employer claimed to be keeping her position open for her. Ms. Parker did not respond with any interest in returning to Roth Construction as she felt she had indeed been dismissed.
Nonetheless, on May 12, 2000 Roth Construction again wrote to the applicant indicating that it had not terminated her employment and giving her a further ten days in which to indicate whether she wished to return to her position with the company. Ms. Parker did not respond to this letter.
Neither Mr. Roth nor Ms. Bakunowicz gave evidence at the hearing before me. Mr. Scott Brown, a manager at Roth Construction, testified. However, Mr. Brown had no first hand knowledge of what Mr. Roth or Ms. Bakunowicz had been doing during the relevant period. The Board therefore did not have the benefit of the testimony of anyone who had been integrally involved with Ms. Parker and what had been happening at Roth Construction between September 10 and 16, 1999. The Board has therefore relied on Ms. Parker’s evidence regarding the September 10 to 16th period, Mr. Scott’s general evidence regarding the office, and the documents tendered into evidence in reaching its decision.
It is clear that Mr. Roth makes all major decisions at Roth Construction. Since he had instructed Ms. Bakunowicz to put an advertisement in the newspaper for a new bookkeeper, had said he did not want any temporary employee filling Ms. Parker’s position, and had signed the last cheque issued to Ms. Parker that indicated it was for “Separation Pay”, Ms. Parker believed he had terminated her employment. Further, since Mr. Roth routinely communicated his decisions through Ms. Bakunowicz, Ms. Parker did not consider contacting Mr. Roth herself to inquire further.
Roth Construction had one bookkeeper from 1997 on. It still has one bookkeeper although Mr. Scott intimated that if Ms. Parker had returned, the company would likely have kept on her replacement as well as he believed there was enough work for two people. Ms. Parker testified that while she was very busy, there was insufficient work for two bookkeepers.
Decision
There is little dispute about the evidence in this case. On a review of the evidence it appears that Roth Construction effectively terminated Ms. Parker’s employment on September 13, 1999. While it did not send her a letter of termination, or tell her that her employment was being terminated, I am satisfied that a reasonable person viewing the circumstances would have surmised that she was being dismissed.
Mr. Roth decided on Friday September 10th that he did not want a temporary employee hired to replace Ms. Parker while she was on sick leave for an indeterminate period. He apparently told Ms. Bakunowicz to place an advertisement for a replacement. Ms. Bakunowicz held off on placing the advertisement until she had talked to Ms. Parker on the following Monday in case there was a definite return date. When there was none, the advertisement was placed and appeared in the newspaper on the following day. The advertisement did not indicate that the company was seeking a temporary employee, but rather Roth Construction placed exactly the same advertisement it had used to hire Ms. Parker as a full-time permanent bookkeeper. Finally, when Ms. Bakunowicz prepared Ms. Parker’s final cheque, she indicated it was for “Separation Pay”, and Mr. Roth signed the cheque as such.
The employer has maintained since May 2000 that it is holding Ms. Parker’s position open for her and that up until the day of the hearing she was welcome to return to employment. However, the Board is not convinced that the offer was a genuine one. By May 2000 Ms. Parker had not been at work at Roth Construction for about 34 weeks. During that time the employer never contacted her to ask her for a doctor’s note or about when she would be returning to work. Even after the initial claim was filed with the Ministry of Labour in October 1999, Roth Construction never advised Ms. Parker that it had held her job open for her to return to. In the Board’s view it is more probable than not that when Mr. Roth realized that Ms. Parker may be off sick for some time he decided to replace her with another permanent bookkeeper. It would not be unusual for a small enterprise to need to replace a worker who was integral to its operation. However, in this case the employer had at first told the employee that she could keep in touch and return when she was ready, but then immediately turned around and placed an advertisement to fill the employee’s position with no indication that it was doing so on a temporary basis.
DISPOSITION
On the evidence the Board is of the view that Roth Construction terminated Ms. Parker’s employment without giving her notice of termination. As such, she is entitled to two weeks’ pay in lieu of notice pursuant to section 57(1)(b) of the Act.
Ms. Parker was paid at the rate of $630.00 per week. Roth Construction is therefore ordered to pay to Ms. Parker forthwith the amount of $1260.00, plus any interest accrued from September 13, 1999, for termination pay due to her. The rate of interest is to be calculated in the manner determined by the Director of Employment Standards pursuant to section 61.1 of the Act.
“Gail Misra”
for the Board