'He essentially made a demand… and decided to quit - he didn't wait to see if there could be a solution'
“Ensure that you are clear on what the employee’s doing if their actions indicate they’re quitting, and if they say they're resigning based on concerns with the workplace, have conversations and document it, and let the employee know that you're willing to work with them to look into the concerns and resolve them.”
So says Shannon Sproule, an employment lawyer at Turnpenney Milne in Toronto, after the Ontario Labour Relations Board overturned an order to pay a worker termination pay after he demanded new employer-provided lodgings or else he would quit.
Adamanda Homes is a residential construction and maintenance company in Pointe au Baril, Ont., that builds, maintains, opens, and closes cottages. It hired the worker in July 2005 as a carpenter’s helper. He eventually achieved the role of foreman.
Pointe au Baril is a small community, so it was difficult for Adamanda to find skilled carpenters in the area. It offered lodgings for the worker, whose primary residence was in Sudbury, Ont.
Adamanda owned a residential property it used to house the worker and a colleague while they performed seasonal work. The property wasn’t high quality but the company considered it livable, and the worker and his colleague agreed to stay at the house without charge as long as they maintained it. Whenever repairs were necessary, Adamanda’s owner provided materials and sometimes paid them to do it.
The company paid all the expenses of the property and supplied the workers with firewood.
In December 2022, Admanada sold the property and the new buyer agreed to lease it back to Adamanda for two years so the company could continue to house the worker and his colleague there.
The worker didn’t make any complaints about the lodgings until May 2023, when he told the owner that “the building was a dump and [he] couldn’t live in it.” He didn’t provide any specifics, but he believed that the owner knew what the problems were.
Worker refused to work without new accommodations
The worker requested new accommodations, but the owner said it wasn’t possible because there weren’t any available in Pointe au Baril other than a tent. The owner offered to make any necessary repairs, but the worker still didn’t provide any specific details.
On June 9, the owner planned to take the worker and the colleague to work on a home he was renovating for himself. When he arrived to pick them up, the worker had packed his belongings and was ready to leave. He asked the worker if he was ready to go to the worksite, but the worker said he was “done” because his lodgings were unacceptable.
The owner explained again that there were no other accommodations available and promised to do what was needed to make the property habitable, adding that he planned to retire at some point over the next year. The worker said he would return for “a big raise and a housekeeper,” but the owner replied that wasn’t possible. The worker asked if he would be entitled to any severance when Adamanda shut down, but the owner said no because of the company’s small size.
The owner and the colleague left for the worksite and the worker left the property the next day, not returning to work. The owner later learned that the worker had told others in the community that he was moving back to Sudbury.
The worker returned to Sudbury on June 10.
On June 14, the worker texted the owner asking what was happening with “new lodging.” The owner replied that his actions and statements indicated that he had quit his job, as he had asked for severance, removed his property, told others he was moving back to Sudbury, and said he was done.
Termination pay
The worker filed an employment standards application for termination pay, claiming that Adamanda terminated his employment and he didn’t quit.
An employment standards officer investigated and determined that Adamanda should pay the worker eight weeks’ termination pay, agreeing that the worker never quit and intended to continue working for the company if he was provided with new lodgings.
“The worker hadn't said ‘I quit,’ so that seemed to be quite significant because the actual words weren’t uttered,” says Sproule. “That’s really what the officer's decision was based on - had the worker been given the new accommodations, he was going to continue working.”
Adamanda appealed the decision, arguing that the worker resigned from his employment. It said that it didn’t want to terminate the worker’s employment, as he had a valuable skill set that was difficult to find. The worker presented the company with an ultimatum – provide him with new lodgings immediately or he would withdraw his services, said the company.
The company also argued that it didn’t unilaterally alter any terms or conditions of. As a result, there was no constructive dismissal, the company said.
Intention to resign
The board agreed that the worker never stated the words “I quit.” However, it found that the worker’s actions indicated differently, as he told the owner that he wasn’t going to work unless he received new lodgings or a higher rate of pay and a housekeeper. The worker also refused to work, told others that he was no longer working for Adamanda, and failed to report for work, said the board, adding that he never retracted his demand for new lodgings as a condition of continuing to work.
The board determined that the worker’s actions indicated an intention to resign from his employment on June 9, 2023, when his demand for new lodgings or a raise and housekeeping wasn’t met.
Although the worker didn’t actually say he quit, his actions clearly indicated that he had quit, according to Sproule.
“It was clear that [the worker] wanted to change [his lodgings] or else he didn't want to work there, but he also asked for severance and he removed his property as well,” she says. “And he told others in the community that he was moving back [to Sudbury], so his actions indicated that he had indeed decided to quit.”
“He requested new accommodations and he wasn't given them, but you still have to dig a little deeper,” adds Sproule. “He essentially made a demand and there was no evidence that the employer wasn't going to work with him to repair the accommodations, so really it was on him and he decided to quit - he didn't wait to see if there could be a solution.”
Term of employment
The board acknowledged that the provision of lodgings was a term of the worker’s contract of employment for 16 years. The company’s obligation was to provide lodging that was habitable, safe, and comfortable within reason, said the board.
However, the board found there was no evidence that Adamanda failed to honour its contractual commitments in this regard. The worker indicated that he wasn’t happy with the property, but he didn’t provide any specific examples that it was no longer habitable and safe, the board said.
The board also found that the worker was obligated to allow the company a reasonable opportunity to fix any problems with the property, but he resisted the owner’s attempts to offer repairs. Instead, the worker demanded new lodgings or he would leave, playing “hardball” and leveraging his importance to the company to get better terms and conditions of employment, said the board.
The board determined that Adamanda didn’t fail to fulfill its obligations and it didn’t change an essential term or condition of the worker’s employment. As a result, the worker wasn’t constructively dismissed, said the board in overturning the order to pay termination pay.
“[Adamanda] still had an obligation to figure out what was required to repair any of the issues and to address any of [the worker’s] concerns, making sure it was up to health and safety standards and something he can live in,” says Sproule. “If the accommodations are tied to the work that the employee is doing, the employee needs to be able to live in a safe location, so there is liability to consider as an employer if you do take on the responsibility of housing the employee.”
“The principle still remains that if an employer is providing housing for the employee, then they are responsible for ensuring it meets health and safety standards - in this case, the employee didn't give them the time and he made a demand that wasn't to repair it, but to just give him new accommodations.”
Clarity on the worker’s intentions in such matters is key, says Sproule.
“If an employee isn't being clear, you should try to get clarity from them,” she says. “This case ended up in the employer’s favour, but it still had to go through the hearing process - it's always better to ensure that you get clear words from an employee, rather than hoping that the analysis of their actions works in your favour.”
