0105-00-ES William D. Robb, Applicant v. Guaranteed Auto & Plate Glass (1988) Limited and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 50009062

BEFORE: Marilyn Silverman, Vice‑Chair.

APPEARANCES: William D. Robb and Sandra Robb for the applicant; Stephen Peglar, David Field and Bonnie Field for the responding party; no one appearing for the Ministry of Labour.

DECISION OF THE BOARD; November 22, 2000

1This is an application for review filed under section 67 of the Employment Standards Act (‘the Act’) of a refusal of an employment standards officer (the “officer”) to issue an order to pay. The refusal was for an amount representing five (5) weeks’ termination pay in lieu of notice. The Ministry of Labour advised the Board at the outset of the hearing that it would not participate in the appeal as the responding party (the “employer”) was represented by counsel and the applicant employee was not.

2The applicant, Mr. William Robb (“Mr. Robb”) was originally hired by a predecessor company in 1994. The employer purchased the company in September 1998. Mr. Robb was employed as a window glazer. It is not disputed that Mr. Robb had five years of employment for the purpose of termination pay.

3On August 17, 1999 Mr. Robb attended at work after a return from vacation. He was handed his Record of Employment in an envelope by Mr. David Field (“Mr. Field”). Mr. Field is the manager of the operation. Mr. Robb says that Mr. Field told him that he was not being continued in employment as he was the highest paid employee. Mr. Field asserts that Mr. Robb was to be temporarily laid off as a result of a downturn in business and was to be recalled. However, Mr. Field testified that he did not know when a recall would occur as it was contingent upon the business picking up.

4It is useful to describe the completed Records of Employment that were provided in evidence. There were two copies. The difference in them was contained in Box 14. Box # 14 is entitled “Expected Date of Recall”. There are in substance three options available in that box; (a) check a box marked “unknown”, (b) check a box marked “not returning” and (c) indicate a date of return by day, month and year. In one of the copies provided (Exhibit 1) option (a) above is chosen. In the second copy (Exhibit 2), the check mark in the box marked “unknown”is crossed out and appears to have been initialled. In Exhibit 2 the date of “8/Nov/99” is contained in the area I refer to as (c) above.

5Mr. Robb brought the Record of Employment (Exhibit 1) with the “unknown” date of recall to the Employment Insurance Office and was advised that he was owed termination pay for five (5) weeks. After being advised of this fact, Mr. Robb asserts that Mr. Field changed the Record of Employment to reflect a date of recall as November 8, 1999 (Exhibit 2).

6There were four undisputed occasions when Mr. Robb was offered work by the employer after August 17, 1999. The first occasion was on August 19, 1999. Mr. Field called Mr. Robb and asked him to report to work on August 20, 1999. Mr. Robb refused on the basis that he had a job interview and Mr. Field’s offer was only for temporary work. The second occasion was on September 8, 1999. He again refused. On September 17, 1999 Mr. Robb was again called to report to work for a period of time that was not a full day of work. Mr. Robb was commencing a new job the following Monday and refused to attend again. On either September 20 or 21, 1999 Mr. Robb was called to come in to work on September 21, 1999 and at that time he advised the employer that he had a new full time job. On October 8, 1999 Mr. Robb received a letter from Mr. Field confirming that Mr. Robb had retained a new position and accepting “your wish to terminate your employment”.

7Mr. Robb stated that the reason he did not return to work on the occasions upon which work was offered to him by the employer was because he was actively looking for other full time employment and the work being offered was of too short a duration.

8In essence, Mr. Robb’s position is that he is entitled to his termination pay as Mr. Field changed the termination (or indefinite layoff) to a temporary layoff after he learned that the employer would owe Mr. Robb termination pay.

9The employer asserts that Mr. Robb was temporarily laid off, recalled and refused to attend at work in response to these recalls. The originally completed Record of Employment was done in error and quickly corrected. The employer submits that there was no termination of employment by the employer but rather the eventual resignation by the employee once he obtained another job. Accordingly it submits Mr. Robb is not entitled to termination pay.

Decision

10Having regard to the evidence presented, I find that Mr. Robb was terminated by the employer on August 17, 1999 and is entitled to five (5) weeks pay in lieu of notice. Section 8(3) of Regulation 327 of the Act provides that notice of indefinite lay-off is deemed to be notice of termination. The most likely and probable characterization of the facts presented is that the original intention of the employer was to lay off Mr. Robb for an indefinite period of time as was indicated on the Record of Employment (prior to it being revised) and by the August 17 conversation. No mention was made of a recall date until it became apparent that such a date may be helpful in avoiding the payment of termination pay. Had Mr. Robb not advised Mr. Field of what he learned at the Employment Insurance office it is likely that that no change would have been made. The sporadic and offers of short recall that were made by the employer are not enough to transform the indefinite layoff to a temporary one in the circumstances of this case.

11At the time of his termination Mr. Robb earned $17.00 per hour and worked 40 hours per week. He had been working for the employer (or its predecessor) for five years. He is also entitled to 4% vacation pay on his termination pay. The total of these amounts is $17.00 x 40 hours per week x 5 weeks = $3,400.00 x 4% vacation pay = $3,536.00

DISPOSITION

12The application for review is allowed.

13For the reasons stated above, I find that the applicant was terminated from his employment and entitled to pay in lieu of notice. I therefore order the responding party to pay to the applicant forthwith the amount of $3,536.00

“Marilyn Silverman”

for the Board