ONTARIO SUPERIOR COURT OF JUSTICE (SMALL CLAIMS COURT APPEAL)

COURT FILE NO.: DC-17-0069-00 DATE: 20190108

BETWEEN:

Ace Marmon, Appellant

– and –

The Authentic T-shirt Company / SanMar Canada, Respondent

COUNSEL:

Gil Fischler, for the Appellant Daniel McDonald, for the Respondent

HEARD: September 14, 2018

REASONS FOR JUDGMENT

(On appeal from a decision of Deputy Judge Martel of the Brampton Small Claims Court delivered July 18, 2017)

PETERSEN J.

Overview

[1] This is an appeal from the July 18, 2017 decision of Deputy Judge Martel of the Brampton Small Claims Court, which dismissed Mr. Marmon’s action against SanMar Canada.

[2] The Appellant, Mr. Marmon, worked full-time for SanMar from May 3, 2010 until July 19, 2016. SanMar is a wholesale distributer of t-shirts, hoodies and other printable apparel.

[3] Based on events leading up to July 19, 2016, SanMar concluded that Mr. Marmon had resigned from his employment. It confirmed his resignation in a letter dated July 20, 2016. In that letter, it advised Mr. Marmon that, in any event, his employment would have been terminated for cause for insubordination.

[4] Mr. Marmon took the position that he did not quit his job but rather was fired without cause. He commenced an action against SanMar for wrongful dismissal, seeking damages in the amount of $25,000 and aggravated and punitive damages in the amount of $15,000.

[5] In this appeal of the dismissal of his action, Mr. Marmon seeks an order setting aside Deputy Judge Martel’s decision and granting judgment against SanMar for damages in the amount of $13,042.89 (representing five months’ notice of termination and vacation pay).

Background Facts

[6] The following is a brief summary of the facts that gave rise to the litigation, as found by the Deputy Judge at trial. I provide this summary as a contextual framework for my reasons below.

[7] Mr. Marmon did not have a written contract of employment.

[8] Mr. Marmon held different positions with SanMar over the years, including that of Shipper, which he occupied for approximately four and half years. During his employment, he trained other employees in the shipping department.

[9] At the time of his termination, Mr. Marmon was working as a Pick Up Order Attendant. He had held that position since approximately August 2015. As set out in the job description for his position, he was occasionally required by management to help out in other areas of the warehouse, including the Shipping department. SanMar had an established practice of requiring all employees to work temporarily in different positions, as needed, in order to ensure that its product was successfully delivered to its customers in a timely way. Employees were cross-trained so that they could cover other positions as required.

[10] In late 2015, after Mr. Marmon transferred out of the Shipping department, the company increased the hourly wage rate for Shippers.

[11] In or about January 2016, Mr. Marmon was earning $15.00/hour as a Pick Up Order Attendant. He learned that a new employee with less than three month’s experience was earning $18.50/hour as a Shipper.

[12] Mr. Marmon felt aggrieved that he was being paid substantially less than this new employee, who he had trained. He became further frustrated when he was passed over for a promotion that was given to another employee who he felt was less qualified. He also started to feel targeted and singled out unfairly by his manager’s close monitoring of his punctuality. From May 2016 onward, he was involved in coaching meetings with management and he received disciplinary warnings about his late arrivals at work. By July 2016, he was put on performance probation and was cautioned that his continued employment was in jeopardy.

[13] In early July 2016, he complained to management about these issues and about his compensation. He requested a wage increase. He argued that it was unfair that he was being paid substantially less than Shippers, since he had performed the shipping duties for over four years. Management justified the wage disparity based on the different duties of the two positions and the fact that Mr. Marmon no longer occupied a position as a Shipper.

[14] Shortly thereafter, on July 18, 2016, he was asked to help with shipping duties. He refused, stating that it was outside of his pay grade. He was reminded that the requirement to help in other departments is part of the job description for his position and is a common expectation for all employees. He was sent home for the rest of the day and was encouraged to reconsider his position. He was warned that, going forward, a similar refusal would result in the termination of his employment.

[15] On July 20, 2016, SanMar was short-staffed in the shipping department. Mr. Marmon was asked whether he was willing to help in that area immediately. He responded that he would, but only if he were paid the higher Shipper’s wage rate. He was told that paying a differential wage rate when employees are temporarily assigned to cover duties outside of their regular position is not company policy. He was reminded that covering other duties as assigned was within his job description. He replied that he would work in other departments, as he had done earlier that same week, but said he would not work in shipping unless he was paid the differential.

[16] Mr. Marmon then left work without permission and without notifying his supervisor. His supervisor called him at home to see if he was coming back to work. He responded, “The company doesn’t want me anymore. Nice working with you.” He was asked whether he would be returning to work the next day and he said he didn’t know and “didn’t want to work in a company that doesn’t treat people fairly.”

[17] His manager later called him at home and left a message for him to return her call, which he did. She asked him to return to work and help in the shipping area. He said he would only come back if his pay were increased for working in shipping. She told him SanMar would not do that. He said he therefore would not return to work. She asked whether he understood that his employment would be terminated because of his refusal and he indicated that he understood.

[18] SanMar sent Mr. Marmon a letter dated July 20, 2016, confirming his resignation or, alternatively, the termination of his employment for cause.

Small Claims Court Decision

[19] Mr. Marmon commenced a wrongful dismissal action against SanMar.

[20] Deputy Judge Martel dismissed the action. She found that “Mr. Marmon was asked three times on July 18th and 19th to cover for someone in shipping and he refused. Mr. Marmon understood that his refusal could result in his termination. I find on the facts before me that the record of employment is accurate and Mr. Marmon did indeed quit.”

[21] She concluded that “Mr. Marmon’s refusal to work in shipping, on an occasional as needed basis, unless he was paid an increased wage constitutes a repudiation of an essential condition of his employment contract with SanMar.”

[22] She also found that SanMar had cause to terminate Mr. Marmon’s employment for insubordination without notice or pay in lieu of notice. She held that Mr. Marmon intentionally refused to obey his employer’s lawful and reasonable order, namely to work temporarily in shipping without an increase in his wage rate. She found that this was “an action of a serious nature given the company policy”. She held that there was no legal reason for his refusal to help out in shipping. She also held that there was no evidence to suggest that management was targeting him, though she accepted that Mr. Marmon legitimately believed that he was being targeted.

Grounds for Appeal

[23] Mr. Marmon submits that Deputy Judge Martel made the following errors:

a) She erred in law by finding that it was a term of Mr. Marmon’s employment that he was required to work as a shipper at a lower rate of pay than the shipping rate. She relied on unwritten company policy and a job description that was drafted by the company in determining the terms of this contract of employment. The job description provides that the employee is to assist in other areas as required or directed, it does not specify that the employee must do so at a lower rate of pay when the pay scale for the specific area is higher. Such a term could not be implied unless SanMar proved its necessity. Even if such a term could be implied, the job description was provided to Mr. Marmon three months after he started in his position as a Pick Up Order Attendant, so to the extent that it altered a term of his employment, it was void for lack of consideration. Deputy Judge Martel failed to consider the rules of contractual interpretation, including formation of contract and contra proferentem.

b) She committed an overriding and palpable error of fact when she concluded that Mr. Marmon’s refusal to work in shipping at a lower rate was contrary to SanMar policy.

c) She erred by failing to consider that hourly rates at SanMar attach to the work performed in each position.

d) She erred in finding that it was a term of Mr. Marmon’s employment contract that he was not entitled to the Shipping hourly rate when he worked in shipping, as no such express or implied term existed.

RULING

[24] For the reasons set out below, the appeal is dismissed with costs.

[25] Deputy Judge Martel’s findings are owed deference and cannot be overturned unless I conclude that she committed a palpable and overriding error: Lin v. Ontario Teachers’ Pension Plan Board, 2016 ONCA 619 at para. 44.

[26] She made no palpable and overriding errors of fact. All of her factual findings were grounded in the evidence before her.

[27] Deputy Judge Martel made no errors of law. She reviewed applicable Supreme Court of Canada jurisprudence (McKinley v. BC Tel, 2001 SCC 38) and applied the principles set out therein. She examined the facts before her and assessed the nature, extent and seriousness of Mr. Marmon’s refusal to do assigned work in the context of his employment relationship with SanMar. She properly considered Mr. Marmon’s job description, the company’s policy and past practice, as well as Mr. Marmon’s history of employment, and the events that led to the termination of his employment. Contrary to the appellant’s submission, she did not fail to consider the fact that hourly rates at SanMar attach to employee positions and duties (see paragraph 18 of her decision).

[28] She did not, as Mr. Marmon suggests, find that it was a term of Mr. Marmon’s employment contract that he was required to work as a Shipper at a lower rate of pay than the Shipping rate. Rather, she found that it was a reasonable and lawful request for SanMar to assign Mr. Marmon to do shipping duties on a temporary basis, pursuant to both company policy and past practice, without any acting pay raise.

[29] She did not find that Mr. Marmon violated company policy by refusing to do shipping work at less than the Shipper’s wage rate. Rather, she found that his repeated refusals to assist on an occasional, as needed basis -- as he had done before -- unless his demands for an increased acting pay rate were met, constituted misconduct incompatible with the fundamental terms of his employment relationship, as well as repudiation of an essential condition of his employment with SanMar.

[30] Deputy Judge Martel supported her findings with reference to SanMar’s policy and practice of asking all employees to assist, on a temporary as needed basis, in other areas of the company, in order to ensure that its product gets delivered to customers in a timely way. The evidence before her was that this policy and practice applied to every employee. She noted in her reasons that the “testimony at trial was that no one but Mr. Marmon ever refused to work in another area of the warehouse when requested.” There was no evidence that any other employee received acting pay or a responsibility allowance when assigned to do work in a higher rated position (or that they received lesser wages when assigned to do work in a lower rated position). She found, based on the evidence before her, that Mr. Marmon was not targeted or treated differently from other employees by the employer.

[31] Deputy Judge Martel reviewed and properly applied the principles articulated by the Ontario Court of Appeal in Dowling v. Ontario (WSIB), [2004] O.J. No. 4812 (ONCA). In so doing, she considered whether dismissal was warranted in the circumstances and concluded that it was a proportionate response to Mr. Marmon’s repeated refusals to obey the reasonable and lawful request of his employer.

[32] Mr. Marmon argues that the job description could not form part of his employment contract because it was not given to him until three months after he assumed his current position as a Pick Up Order Attendant. The Deputy Judge did not make a finding that the job description constituted his contract or that it formed part of his contract of employment. Rather, she considered the job description as one piece of relevant evidence in assessing the full context of the employment relationship. She did not err in doing so.

[33] Since Mr. Marmon did not have a written contract of employment, there was no express contractual provision stipulating that the performance of temporary assignments without acting pay was part of the terms of his employment. Mr. Marmon argues that the Deputy Judge erred by finding that this was an implied term of his employment contract without turning her mind to the requisite test for reaching such a conclusion, namely whether the implied term is necessary to give efficacy to the contract: Olympic Industries Inc. v. McNeill, 1993 CarswellBC 361 (BCCA) at paras. 23-31. Mr. Marmon argues that SanMar bears the onus of proving this necessity and that the Deputy Judge erred by not holding SanMar to this burden of proof.

[34] I do not agree that the test articulated in Olympic Industries applies in the circumstances of this case. That test applies where a contract is silent with respect to a particular issue, where the parties have not agreed upon terms to address a particular eventuality and one party argues that a term should be implied in the contract when that eventuality arises. In this case, the evidence before Deputy Judge Martel established that there was an agreement that Mr. Marmon would perform work outside of his home position, on a temporary as needed basis, without any change in his pay rate (up or down). Mr. Marmon had done so on numerous occasions, while receiving his regular wage rate.

[35] Deputy Judge Martel committed no error in concluding that Mr. Marmon’s conduct demonstrated a clear intent to no longer be bound by the terms of his employment contract, which had always included occasional temporary assignments in other departments without acting pay.

[36] For all of the above reasons, the appeal is dismissed. Pursuant to the joint submissions of the parties at the appeal hearing, the Appellant Mr. Marmon is ordered to pay the Respondent SanMar’s costs in the amount of $7,500, all inclusive.

Petersen J.

Released: January 8, 2019