CITATION: Lawrence v. Norwood, 2016 ONSC 6072
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kenneth Dexter Lawrence and Sylvia Ethel Lawrence
Plaintiffs
– and –
Norwood Industries Inc.
Defendant
Bernard Verbanac and Monica Machado, for the Plaintiffs
Dave J.G. McKechnie, for the Defendant
HEARD: September 14, 15, 16, 19, 20, 23, 2016
The Honourable Mr. Justice G. E. Taylor
Introduction
1Ken and Sylvia Lawrence are spouses who both worked for Norwood Industries Inc. for approximately 15 years. Ken Lawrence worked in the office and Sylvia Lawrence worked in the warehouse. At the end of the work day on May 25, 2012, Sylvia Lawrence was given a Letter of Reprimand about arriving late for work, declining to work overtime and her attitude generally. The next scheduled work day was May 28, 2012. At approximately 8 AM that morning, Ken Lawrence telephoned Norwood and spoke to the accountant/human resources manager. He advised that he and his wife would not be returning to work. No reasons for this decision were given.
2This action is brought by Ken and Sylvia Lawrence seeking damages for wrongful dismissal from employment. They claim that they were constructively dismissed based on the conditions in the workplace.
Background
3Kenneth Lawrence is currently 56 years of age having been born on August 4, 1960. He commenced employment with Norwood in April 1996.
4Sylvia Lawrence is currently 63 years of age having been born on August 29, 1953. She testified that she began working at Norwood as a casual employee in August 1996 and became a permanent employee in December 1996. Anne Stewart, the accountant/human resources manager of Norwood, testified that Sylvia Lawrence became a full time employee in December 1997. Nothing turns on this discrepancy. Sylvia Lawrence was a long term employee of Norwood.
5Norwood sells portable sawmills which are sold unassembled in boxes to be assembled on location by purchasers. Norwood was started in the mid-1990s by Peter Dale. In the early 2000s Peter Dale’s daughter, Ashlynne, began working at Norwood. In approximately 2010, Peter Dale ceased to be involved in the day-to-day operation of Norwood and Ashlynne Dale became the senior officer and primary decision maker at Norwood.
The Terminations
6In April, 2012 Norwood made a decision to require warehouse employees to begin work at 7 AM instead of the usual 8:30 AM. Sylvia Lawrence was not happy about being required to work extra hours. On the Thursday prior to April 16, 2012, Sylvia Lawrence met with Kevin Burch, the newly hired warehouse manager and advised she would not commence work earlier than 8:30 AM (Ex 1B Tab 76). On Thursday, May 24, 2012 Sylvia Lawrence arrived late for work. She advised Kevin Burch that she was not going to begin work early. She also stated that if required to commence work before 8:30 AM she would become ill.
7Ashlynne Dale testified that on May 24, 2012, Kevin Burch advised her about his conversation with Sylvia Lawrence. He reported that Sylvia Lawrence had been rude to him, did not want to start work earlier than 8:30 AM and that if required to start work earlier she would become ill. Ashlynne Dale said that she was concerned about Sylvia Lawrence’s rudeness and a refusal to follow directions as well as the medical concern. She instructed Kevin Burch to pursue both issues but to keep them separate.
8A decision was made to provide Sylvia Lawrence with a formal Letter of Reprimand.
9Joe Mannell, a warehouse lead hand, who was also a long-term employee of Norwood, testified that on May 24, 2012 he had occasion to speak to Sylvia Lawrence at the direction of Kevin Burch. Kevin Burch instructed him to speak to Sylvia Lawrence about her attitude and tell her that it had to change. Joe Mannell told Sylvia Lawrence that she had to change her attitude towards what was happening at Norwood. She did not think she had an attitude problem. However, when they returned to the warehouse, Sylvia Lawrence apologized to Kevin Burch in his presence.
10A memo prepared by Joe Mannell was made an Exhibit (Ex 1B Tab 82). In it he referred to a meeting with Sylvia Lawrence on May 25, 2012 at the direction of Kevin Burch. In the memo, Joe Mannell noted that he spoke to Sylvia Lawrence and told her she had to change her attitude toward the new policies being instituted by Kevin Burch. He noted in the memo that Sylvia Lawrence said she had been employed at Norwood far longer than Kevin Burch and he could not tell her what to do. Joe Mannell noted telling Sylvia Lawrence that she had to change her attitude and accept the new policies. They then returned to the warehouse at which time Sylvia Lawrence apologized to Kevin Burch but also said she did not think an apology was required.
11Joe Mannell also testified that Kevin Burch wanted to speak to Sylvia Lawrence on May 25, 2012 about parts that were missing from a sawmill package which had been sent to a customer. He said he was present at a meeting in the parking lot at approximately 2:30 in the afternoon. Kevin Burch delivered some papers to Sylvia Lawrence who said she wanted time to read them.
12Joe Mannell testified that there was a further meeting in the parking lot towards the end of the workday involving Kevin Burch, Sylvia Lawrence and himself. He said Kevin Burch handed some papers to Sylvia Lawrence. Sylvia Lawrence became upset and she and Kevin Burch had words. Sylvia Lawrence said she was not going to sign anything without first reading it. Ken Lawrence arrived. He then returned to the warehouse leaving the Lawrences and Kevin Burch together in the parking lot.
13In the memo prepared by Joe Mannell he noted that on Friday, May 25, 2012 Kevin Burch told him he had a paper he wanted to give to Sylvia Lawrence and have her sign regarding parts missing from a shipment. Kevin Burch asked him to be present. The meeting took place in the parking lot. Kevin Burch spoke to Sylvia Lawrence about the mistakes in packaging and asked her to sign a paper. Sylvia Lawrence became upset and had words with Kevin Burch. She said she would not sign the paper until she read it and had some time to think about it. The meeting ended with Sylvia Lawrence returning to the warehouse. The note indicated that no other employees were involved in the meeting.
14I am satisfied that Joe Mannell met with Sylvia Lawrence, at the direction of Kevin Burch, regarding her attitude and the requirement that it improve. At this meeting Sylvia Lawrence was defiant. The meeting took place either on May 24, 2012 or during the day on May 25, 2012. It is not necessary to resolve the discrepancy in the evidence about whether the meeting occurred on May 24 or May 25, 2012.
15I am also satisfied that at the end of the day on May 25, 2012 Kevin Burch met with Sylvia Lawrence in the presence of Joe Mannell and gave her a Letter of Reprimand regarding insubordination and a Memo regarding medical concerns (Ex 1B Tabs 79 and 80). I find that Sylvia Lawrence became upset when these documents were given to her together with the request that she sign them. She refused to sign the documents. I conclude that Ken Lawrence exited the building and overheard some of the exchange of words between his wife and Kevin Burch regarding these documents. He became upset.
16Ken Lawrence and Sylvia Lawrence spent the weekend of May 26 and 27, 2012 discussing what had occurred at Norwood on the previous Friday as well as the work environment generally. They decided they could not continue to work at Norwood.
17At the beginning of the work day on Monday, May 28, 2012, Ken Lawrence telephoned Norwood and spoke to Anne Stewart. He informed Anne Stewart that he and his wife were not returning to work at Norwood. He asked that Anne Stewart inform Ashlynne Dale of this decision. Anne Stewart inquired about the reason for this decision and she was told by Ken Lawrence that it was none of her business. Although Ken Lawrence testified at different times that he did not request that Ashlynne Dale call him and that he did make such a request, I find as the fact that Ken Lawrence did not ask Anne Stewart to have Ashlynne Dale call him about the decision of he and his wife to terminate their employment with Norwood.
18Anne Stewart testified that she spoke to Ken Lawrence by telephone on Monday morning, May 28, 2012. He advised that he and Sylvia Lawrence had quit, effective immediately. She asked the reason. He said he had nothing more to say and terminated the conversation.
Conditions in the Warehouse
19Considerable evidence was led about the conditions in the warehouse at Norwood. Norwood carries on business in a two-story building in Kilworthy, Ontario. The office and showroom are on the upper floor and the warehouse is partially underneath the office and showroom and partially contained in an extension at the back of the building. Because of the slope of the property from front to back there is access to the warehouse from the rear parking lot.
20Sylvia Lawrence testified that the conditions in the warehouse were such that it was an unsafe work environment. There was clutter throughout the warehouse. There were mice and chipmunks in the warehouse which resulted in excrement throughout the warehouse. There were bats in the warehouse and bat excrement could be seen on the walls. There was mildew in the warehouse as a result of a water leak. The water in the bathroom was not drinkable. The washroom in the warehouse area became so filthy at times that employees were required to use the upstairs washroom. The carbon monoxide detector frequently signaled an unsafe level of carbon monoxide in the warehouse.
21Ken Lawrence testified that there was mass confusion in the warehouse regarding inventory storage. The clutter in the warehouse was a safety concern because people could trip over items on the floor and boxes that were stacked could topple over. The warehouse was dusty. The water at the Norwood facility was not drinkable. There was water leakage which resulted in mold in the warehouse. Mice in the warehouse were a concern. He and another employee, Brian Tompkins, put out mouse traps. On average two or three mice were caught each night. It was necessary to clean up the mice feces each morning. Once or twice a month, bats would be seen flying in the warehouse. There were bat droppings on the top of boxes. The temperature in the warehouse fluctuated. It was hot in the summer and cold in the winter because the single thermostat for the whole building was located in the upstairs office.
22Ken Lawrence testified that he brought his concerns about the unsafe and unsanitary conditions in the warehouse to the attention of senior management of Norwood. By way of an email dated March 29, 2012 to Ashlynne and Peter Dale, Ken Lawrence raised an issue about inadequate warehouse space. No mention was made in the email about unsafe or unsanitary conditions in the warehouse. There was no evidence of any other written complaint made by Ken Lawrence about conditions in the warehouse.
23Brian Tompkins was employed by Norwood as a foreman in the warehouse from 1996 until 2010. He testified that throughout the period of his employment, the warehouse was always filled to capacity. There was insufficient room to move around. It was always a concern that someone might trip and fall over something left on the floor or that boxes containing product which were stacked on top of one another, might fall over. The warehouse was dirty. The carbon monoxide detector went off regularly. There was no drinkable water. Water leaked into the warehouse which resulted in mold developing. There were mice and bats in the warehouse. The warehouse was hot in summer and cold in winter.
24Ken Wingate, who was employed in the warehouse at Norwood for approximately eight months in 2012, testified that it was difficult to move around in the warehouse because of clutter. He said the warehouse was dusty and unsanitary. There was mice feces in the warehouse. On a couple of occasions he saw dead mice and once he saw a dead bat. He did not consider the Norwood warehouse to be a safe work environment.
25Ken Wingate also testified that when Kevin Burch was hired as warehouse manager he was critical of Sylvia Lawrence. Kevin Burch said Sylvia Lawrence was not doing a good enough job.
26Anne Stewart commenced employment at Norwood as an accountant/bookkeeper in 1996. By May 2012 she was responsible for all accounting functions including payroll. Although there was no human resources manager at Norwood she performed certain human resources functions. Hiring, firing and discipline were the responsibility of Ashlynne Dale. She testified that Ken Lawrence at no time raised any health or safety concerns with her regarding conditions in the warehouse. She said that on one occasion when she was in the warehouse Sylvia Lawrence told her to look out for bats. She never observed mice or mice feces in the office or the warehouse.
27In cross-examination Anne Stewart testified that she was aware from general conversation that there were mice and bats in the warehouse. She was aware of an issue about water quality but that was rectified when a filtration system was installed in the upstairs office area.
28Joe Mannell commenced employment with Norwood as a shipper/receiver in 1997. When Brian Tompkins left, he became a supervisor in the warehouse. He continued in the position of supervisor until Kevin Burch was hired in March 2012. He testified that occasionally bats were and are seen in the warehouse in the spring. He said that the warehouse was cluttered which was one of the reasons why Kevin Burch was hired. The warehouse has always been dusty. There was a period of three or four years when there was a problem with water leaking into the warehouse. He said that the problem with mice in the warehouse occurred in the spring. He was aware of mildew in the warehouse in the spring. He testified that at no time did he receive any complaints from Sylvia Lawrence about bats, dust in the warehouse, mildew or the frequency of the carbon monoxide alarm going off.
29Ashlynne Dale testified about various emails she received from Ken Lawrence and meetings she had with him in the two or three years preceding May 28, 2012. At no time did he raise any health and safety concerns arising out of the workplace at Norwood. At no time did Ken Lawrence complain to her about the quality of the drinking water at the Norwood facility. Ken Lawrence did not raise any concerns about his safety while in the warehouse. Ken Lawrence did not complain about the carbon monoxide alarm being triggered from time to time. Sylvia Lawrence never complained to her about conditions in the warehouse and no one related to her any complaints which she understood to come from Sylvia Lawrence.
30Ashlynne Dale testified that Kevin Burch was hired as warehouse manager in March 2012. Ken Lawrence was involved in the process of interviewing candidates which resulted in the hiring of Kevin Burch. One of the reasons for hiring Kevin Burch was to address the overcrowded conditions in the warehouse.
Analysis
31When an employer unilaterally makes substantial changes to the essential terms of an employee’s contract of employment and the employee does not agree to the changes, the employee has been constructively dismissed and the employee is entitled to compensation in lieu of notice and damages. The test is whether a reasonable person in the same situation as the employee would have felt that the essential terms of the employment contract were being substantially changed. (Faber v. Royal Trust Co., 1997 CanLII 387 (SCC), [1997] 1 S.C.R. 846)
32The onus is on the plaintiffs to prove a balance of probabilities that Norwood, by its conduct, repudiated the employment contracts of the plaintiffs. (Frankcom v. Tandy Electronics Ltd., [1984] O.J. No. 331)
33As the Ontario Court of Appeal stated in Smith v. Viking Helicopter Ltd., 1989 CanLII 4368 (ON CA), [1989] O.J. No. 371 at paragraph 8:
In my opinion, a damage action for constructive dismissal must be founded on conduct by the employer and not simply on the perception of that conduct by the employee. The employer must be responsible for some objective conduct which constitutes a fundamental change in employment or a unilateral change of a significant term of that employment.
34In my opinion, the plaintiffs have failed to satisfy their obligation to prove on a balance of probabilities that a reasonable person in their position would have concluded that the conduct on the part of Norwood when viewed objectively constituted a fundamental change to the terms of employment to justify a conclusion that they were constructively dismissed from their employment.
35I accept that Sylvia Lawrence subjectively believed that she was being treated unfairly by being handed the Letter of Reprimand dated May 25, 2012. I accept that Sylvia Lawrence subjectively believed that Kevin Burch was singling her out for unjustified criticism. It is apparent from the testimony of Joe Mannell and the memo which he authored that Sylvia Lawrence resented the fact that Kevin Burch had been hired as warehouse manager. In my opinion, the comment by Sylvia Lawrence as recorded by Joe Mannell that “he cannot tell me what to do, I was here long before him, and I do not have to do what he says and I will do what I want” is an act of insubordination (Ex 1A Tab 82). I find that the Letter of Reprimand was an appropriate and moderate response to Sylvia Lawrence’s conduct.
36The refusal by Sylvia Lawrence to return to work on May 28, 2012 cannot be justified on an objective standard as being an appropriate response to the receipt of the Letter of Reprimand on the previous Friday.
37Although it is obvious that the conditions in the warehouse were far from ideal, I find that such conditions were not the real reason for the Lawrence’s terminating their employment with Norwood and furthermore that the conditions in the warehouse were not a justifiable reason for the Lawrence’s to feel that they had been constructively dismissed. No complaint was raised about the conditions in the warehouse by either Sylvia or Ken Lawrence before the termination of their employment. During the course of the telephone conversation between Ken Lawrence and Anne Stewart on May 28, 2012 there was no suggestion that the reason for refusing to return to work was because of the conditions in the warehouse.
38I also conclude that the conditions in the warehouse were not nearly as extreme as described by the plaintiffs and their witnesses. As I have said, the conditions in the warehouse were not ideal but I am unable to conclude that the amounted to an unsafe or unhealthy work environment. The hiring of Kevin Burch was a reasonable attempt by Norwood to address the problems being experienced in the warehouse. It is ironic that Sylvia Lawrence resented the hiring of the person whose responsibility was to address the conditions in the warehouse which she alleges where the reason why she was justified in terminating her employment.
39With respect to Ken Lawrence, there is a total absence of evidence from which it could be concluded that he was constructively dismissed from his employment at Norwood. I was provided with no authority in support of the proposition that a spouse is justified in treating his or her employment as constructively terminated as a result of the employer’s treatment of the other spouse. Ken Lawrence did not suggest that his performance in his job had been unfairly criticized. He did not work in the warehouse so it could not be suggested that he was justified in refusing to continue to work in an unsafe and unhealthy work environment.
40For these reasons, the action is dismissed.
Damages
41I was advised of the outset of the trial that the issue of damages had been or would be resolved. Virtually no evidence was led with respect to the issue of damages other than the respective ages of Ken and Sylvia Lawrence and their educational background.
42However, at the conclusion of argument I was provided with a document entitled Plaintiffs’ Damages Calculation and was advised that the parties expected me to assess damages within the range agreed between them of 12 to 14 months’ notice.
43In the absence of satisfactory evidence with respect to damages, I simply choose the midpoint calculation of 13 months’ notice for each plaintiff.
Costs
44Counsel agreed to provide me with their written submissions with respect to costs in sealed envelopes on or before September 30, 2012. Counsel will have these Reasons before that date. Accordingly, it is appropriate for cost submissions on behalf of the defendant to be submitted on or before September 30, 2012 with responding submissions to be submitted within seven days thereafter.
G. E. Taylor J.
Released: September 28, 2016
CITATION: Lawrence v. Norwood, 2016 ONSC 6072
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kenneth Dexter Lawrence and Sylvia Ethel Lawrence
Plaintiffs
– and –
Norwood Industries Inc.
Defendant
REASONS FOR JUDGMENT
G. E. Taylor
Released: September 28, 2016