COURT FILE NO.: CV-18-77640
DATE: 04/20/2021
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: KAREN ANDERSON – PLAINTIFF v. TOTAL INSTANT LAWNS LTD. – DEFENDANT
BEFORE: Madam Justice Julianne Parfett
COUNSEL: Samara Belitzky, for the Plaintiff
Melynda Layton, for the Defendant
HEARD: February 25-26, 2021 (by videoconference)
REASONS FOR DECISION
[1] The Plaintiff seeks damages for wrongful dismissal. The Defendant denies the Plaintiff was dismissed and counterclaims for damages for breach of contract.
Background
[2] In 2018, the Plaintiff, Karen Anderson was employed by the Defendant company as an office manager pursuant to a fixed term contract. Her contract was for employment from April to December.[^1] The Defendant company is a small, family run company that installs sod for large residential and commercial sites. Their work is seasonal in nature.
[3] Ms. Anderson’s work included recording the workers’ hours that were sent to her via What’s App. She would then prepare the payroll and cheques for the CEO and co-owner, Mr. Jacob Kwiatkowski, to sign. She also did the scheduling of the work crews.
[4] Ms. Anderson’s husband, Jason Valley worked for the Defendant on a temporary basis. His last cheque was to be issued on July 6, 2018.
Evidence
[5] Ms. Anderson alleged that there were problems in the workplace consisting of allegations by the workers of abusive behaviour from management.
[6] According to Ms. Anderson, on July 5, 2018 Mr. Kwiatkowski asked her to provide the payroll records for all the employees as he had noticed some discrepancies.[^2] When she went into Mr. Kwiatkowski’s office on July 6 to pick up the payroll cheques, she noticed that he had not signed Mr. Valley’s cheque.
[7] Ms. Anderson texted Mr. Kwiatkowski about the unsigned cheque and she was advised that there was a problem with the hours listed for Mr. Valley. In addition, Mr. Kwiatkowski indicated he wanted to deduct pay from Mr. Valley because on his last day, he had not brought his truck back to the office, which meant another employee had to take time to get the truck.
[8] Ms. Anderson’s response was:
I’ve clocked hours as I’ve gotten them. I’m not happy about this Jacob. It’s not fair and it’s not ethical. In all honesty I’m ready to leave and return when Jason has the pay owed to him.^3
[9] Mr. Kwiatkowski asked Ms. Anderson to call him. There were five attempts made by Mr. Kwiatkowski to call Ms. Anderson and two conversations.[^4] Both parties agree that nothing was resolved during these calls. Ms. Anderson indicated she insisted that she had correctly recorded Mr. Valley’s hours and Mr. Kwiatkowski was equally adamant that Mr. Valley’s hours were overstated. Mr. Kwiatkowski testified that Ms. Anderson repeated her position as outlined in the text: that she would not return to work unless Mr. Valley was paid based on the hours she had recorded.
[10] At approximately 9am on July 6, 2018, Ms. Anderson walked out of the office. According to Ms. Anderson, she had a headache and was taking the day off, but she fully intended to return to work the following Monday. She stated in her affidavit that she told the other employee who was present in the office that day – McKinley Coulson – that she was leaving the office for the day. In cross-examination, she denied that she took all her belongings with her. She indicated that Mr. Kwiatkowski asked her to leave her key and she stated that she had already put the keys on his desk.[^5]
[11] According to Mr. Kwiatkowski, Ms. Anderson took all her belongings with her when she left that day. Despite the ultimatum issued by Ms. Anderson, Mr. Kwiatkowski indicated that he was unsure whether she intended to return to work.
[12] Ms. McKinley Coulson testified that Ms. Anderson told her that she was leaving as she was no longer working at the Defendant company. Ms. Anderson told Ms. Coulson that she had been fired by Mr. Kwiatkowski due to a dispute. In addition, Ms. Coulson said that Ms. Anderson returned the office keys by putting them on Mr. Kwiatkowski’s desk.
[13] During the evening of July 6, there was a meeting at Ms. Anderson’s house. Most of the Defendant’s employees were present as was Mr. Valley and Ms. Anderson. They prepared a document they described as a ‘Strike Notice’.
[14] The following day, Mr. Kwiatkowski was advised by another employee that the entire workforce had walked out and was refusing to work unless certain demands were met, mostly to do with pay rates and safety issues. This employee gave Mr. Kwiatkowski the ‘Strike Notice’.[^6] It had been signed by several employees, including Ms. Anderson. In that notice, the signatories demanded that ‘those who were wrongfully terminated, namely … Karen Anderson shall be offered their previous positions back at full pay and to the terms of their contracts should they still wish employment with Total Instant Lawns Ltd.’[^7] In addition, the notice demanded that Mr. Valley be paid his wages in full and that Ms. Anderson be given authority to schedule the workers without alteration by management.
[15] In response to this notice, Mr. Kwiatkowski sent a text message to Ms. Anderson as follows:
Hello Karen;
You are, as of this moment, barred from visiting or entering any of our properties, facilities or job sites. You are also prohibited from accessing any of our computers or online accounts. This is including, but not limited to, salesforce, godaddy emails and Moneris. If you have any personal belongings in the office, let me know what they are and I will ship them to you sometime next week. Do not delete any messages pertaining to Total Instant Lawns. I hereby demand that you provide me with a copy of every conversation with all of our employees, past and present. This includes individual conversations and all group conversations. These messages are property of Total Instant Lawns. And I demand that you retain such records for 90 days. I demand every and all clock in and clock out messages, without any alterations of any kind, be included.[^8]
[16] Both parties agree that Ms. Anderson’s employment ceased as of July 7,2018.
[17] Mr. Kwiatkowski indicated that he believed Ms. Anderson had been one of the organizers of the work stoppage. Mr. Kwiatkowski contacted the other signatories to the ‘Strike Notice’ apart from Ms. Anderson and the person who had delivered the notice. He was able to persuade most of his employees to return to work without any break in service.
[18] As a result of the loss of some of his employees, Mr. Kwiatkowski indicated that it was difficult to complete their contracts on time and they were required to provide discounts to appease unhappy clients. In turn, this led to lower profits for that season.
[19] Mr. Kwiatkowski testified that he was able to engage the services of a family friend to work in the office after Ms. Anderson left. However, he stated he had to substantially increase his own workload to cover some of Ms. Anderson’s duties.
Issues
[20] The key issue in this case is whether Ms. Anderson voluntarily left the Defendant company or was terminated.
Positions of the parties
[21] The Plaintiff, Ms. Anderson argues that her testimony as to what happened between July 5 & July 7, 2018 should be preferred to that of Mr. Kwiatkowski. She contends that she did not make any statement that could unequivocally be interpreted as an intention to resign from (or abandon or repudiate) her employment. In addition, she argues that her signature on the ‘Strike Notice’ does not constitute a resignation. On the other hand, the Plaintiff asserts that the text message sent by Mr. Kwiatkowski on July 7, 2018 constitutes a clear and unequivocal termination.
[22] The Defendant contends that Ms. Anderson gave Mr. Kwiatkowski an ultimatum and then left the office advising Ms. Coulson that she had been terminated and would not be returning. In addition, she left her keys on Mr. Kwiatkowski’s desk.
[23] According to the Defendant, Ms. Anderson then either organized or was an active participant in organizing a walkout of the Defendant’s workforce. The ‘Strike Notice’ specifically references Ms. Anderson as having been terminated, makes demands in relation to her duties as office manager and reiterates Ms. Anderson’s position in relation to Mr Valley’s pay cheque. This document was signed by Ms. Anderson. The ‘Strike Notice’ states unequivocally that the employees, including Ms. Anderson, were withholding their services until their demands were met.
[24] In the circumstances, the Defendant argues that Ms. Anderson clearly left her employment with no intention of returning and consequently, either resigned, repudiated or abandoned her employment.
Analysis
[25] At the heart of the analysis is an understanding of four legal concepts: resignation, abandonment, repudiation of an employment contract and termination.
[26] As noted in Kieran v. Ingram Micro[^9] a resignation must be clear and unequivocal. Additionally,
Whether words or action equate to resignation must be determined contextually. The surrounding circumstances are relevant to determine whether a reasonable person, viewing the matter objectively, would have understood Mr. Kieran to have unequivocally resigned.[^10]
[27] In the present case, the Defendant has alleged that Ms. Anderson either resigned, abandoned or repudiated her employment. The test for abandonment is similar to that of resignation.[^11] In considering whether an employee has abandoned their employment, the court can look to factors such as a failure to report to work, a failure to follow policies and procedures, relocation and a lack of intention to return.[^12]
[28] On the other hand, the test for repudiation of an employment contract is the following:
Whether an employer is justified in terminating the employment relationship based on repudiation requires an assessment of the context of the employee’s refusal, in order to determine whether the employee refused to perform an essential condition of the employment contract or whether the refusal to perform job responsibilities was directly incompatible with his or her obligations to the employer.[^13]
[29] Where an action alleges wrongful dismissal, the employee bears the onus of demonstrating that their employment was terminated.[^14] The test is whether a reasonable person would consider the employer’s statement or actions to be a termination.
[30] Ms. Anderson’s testimony as to what happened on July 6, 2018 is contradicted by both Mr. Kwiatkowski and Ms. Coulson. I accept Ms. Coulson’s evidence that Ms. Anderson told her she had been fired and would not be returning to work.
[31] The evidence of both Ms. Anderson and Mr. Kwiatkowski supports a finding that Ms. Anderson was not, in fact, terminated on July 6. Mr. Kwiatkowski did not know if Ms. Anderson would be returning or not. Both parties agree that the upshot of the telephone conversations was that Ms. Anderson was sticking to her position that she would not return to work unless and until Mr. Valley was paid his hours as she had recorded them.
[32] Of importance in relation to the issue of Mr. Valley’s hours is that his hours were the only ones that were not supported by texts on What’s App. Mr. Kwiatkowski could confirm all the other employees’ hours by checking the exchanges on that app, but not those of Mr. Valley. Ms. Anderson was never able to adequately explain why Mr. Valley’s hours were recorded separately, other than to state he was a temporary employee. Nor did she ever supply Mr. Kwiatkowski with a record of Mr. Valley’s hours.
[33] However, I cannot find that Ms. Anderson resigned. As noted earlier, any resignation must be clear and unequivocal. Ms. Anderson never unequivocally indicated to Mr. Kwiatkowski that she was not returning to work. This conclusion is supported by the fact Mr. Kwiatkowski testified that as of July 6, he thought the situation could still be salvaged. Additionally, Ms. Coulson understood that Ms. Anderson had been terminated. In the circumstances, the situation was unclear.
[34] Conversely, the evidence does indicate that Ms. Anderson had no intention of returning to work as of July 6, 2018 unless certain conditions were met. I find that she repudiated her employment contract. I cannot find that Ms. Anderson instigated the work stoppage, but I do find that she was an active participant in the organization of the work stoppage. The meeting was held in her home, she is specifically mentioned in the ‘Strike Notice’ and she signed the ‘Notice’.
[35] In the ‘Strike Notice’ that she signed, Ms. Anderson sought to force a change in the terms of her employment and stated she would not return to work unless those changes were instituted. One of Ms. Anderson’s duties was scheduling the workers, but Mr. Kwiatkowski reviewed the schedule and made changes as needed. The workers did not like the fact Mr. Kwiatkowski regularly made changes to the schedule. Therefore, Ms. Anderson, as one of the signatories to the ‘Strike Notice’ was demanding that she be in full control of scheduling and that Mr. Kwiatkowski would no longer be able to make any changes.
[36] In addition, Ms. Anderson reiterated her demand that Mr. Valley be paid according to the hours she recorded. Moreover, one of Ms. Anderson’s duties was to keep track of all employees’ hours and prepare payroll based on those hours. Mr. Kwiatkowski was ultimately responsible for reviewing those records and signing the pay cheques. In failing to keep Mr. Valley’s hours and refusing to provide Mr. Kwiatkowski with any record of his hours, Ms. Anderson was refusing to perform her duties.
[37] In the circumstances, this behaviour constituted an attempt on Ms. Anderson’s part to make significant changes to her duties as outlined in her employment contract and it was incompatible with her continued employment.[^15]
[38] In the circumstances, Ms. Anderson’s claim for wrongful dismissal is dismissed.
[39] The Defendant claims damages for wrongful resignation. In order to make out a claim for wrongful resignation, the employer must demonstrate more than just that the unexpected departure inconvenienced the company, The employer must show that it suffered losses, or costs in excess of what it saved by not paying the employee’s salary during the notice period.[^16]
[40] The evidence at trial indicated that Mr. Kwiatkowski replaced Ms. Anderson almost immediately by hiring a friend. There is no evidence that Ms. Anderson’s departure caused any of the losses claimed by the Defendant. According to Mr. Kwiatkowski, the losses alleged by the Defendant were related to the fact several employees refused to return to work after the work stoppage occurred and, as a consequence, the Defendant was short-handed for the remainder of the season.
[41] As the court has already noted, there is insufficient evidence to conclude that Ms. Anderson organized the work stoppage and therefore, any losses suffered as a result of the work stoppage are not a direct result of her departure.[^17]
[42] Accordingly, the Defendant’s claim is dismissed.
J. Parfett, J.
Madam Justice Julianne Parfett
Date: April 20, 2021
COURT FILE NO.: CV-18-77640
HEARD: 04/20/2021
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: KAREN ANDERSON – PLAINTIFF
AND
TOTAL INSTANT LAWNS LTD. – DEFENDANT
BEFORE: Madam Justice Julianne Parfett
COUNSEL: Samara Belitzky, for the Plaintiff
Melynda Layton, for the Defendant
DECISION
Released: April 20, 2021
[^1]: Tab 1, Joint Book of Documents.
[^2]: Page 144, Defendant’s Affidavit of Documents.
[^4]: Exhibit #3 Affidavit of Jacob Kwiatkowski.
[^5]: Exhibit #5 Affidavit of Jacob Kwiatkowski.
[^6]: Tab 3 of Joint Book of Documents
[^7]: Para. 4 of Tab 3 of Joint Book of Documents
[^8]: Tab 4 of Joint Book of Documents.
[^9]: 2016 ONCA 256.
[^10]: At para. 30.
[^11]: Betts v. IBM Canada Ltd., 2015 ONSC 5298 at para. 57.
[^12]: At para. 59.
[^13]: Roden v. Toronto Humane Society, 2005 CanLII 33578 (ON CA), [2005] O.J. No. 3995 (CA) at para. 45.
[^14]: Newman v. Bend All Automotive Inc., 2015 CanLII 68001 (ONSC).
[^15]: See Clark v. Horizon Holidays Limited, (1993) CarswellOnt 929 at para. 52.
[^16]: Sure-Grip Fasteners Ltd. V. Allgrade Bolt and Chain Inc. (1993) 1993 CanLII 17526 (ON SC), O.J. No. 193.
[^17]: Gagnon & Associates Inc. v. Jesso, 2016 ONSC 209 at paras. 48-55.