Worker had to go off work due to anxiety and stress but crumbling relationships with managers, co-workers not harassment
An Ontario employee’s claims of constructive dismissal and harassment damages based on perceived slights and disenchantment has been stymied by the Ontario Superior Court of Justice.
Michael Lemesani, 56, was hired by Lowerys, a retailer selling stationery supplies, office furniture, copiers and computers in Fort Frances, Ont., in June 1996 to be a salesperson. He started on a three-month probationary period, after which his health benefits kicked in under his employment contract.
After six months of employment, Lowerys conducted a performance review. Lemesani’s compensation was restructured from salary-only to a combination of salary and commission. He was also assigned specific accounts and territories that would be his exclusively for most products except for commercial copiers and contract furniture projects.
In 2001, Lemesani’s sales assignment was changed and he began to sell office machines such as copiers and printers. His salary and bonus increased and he had a new manager. His new employment contract provided for Lemesani and Lowerys to each pay half of the premiums for health, dental, and long-term disability plans.
In the summer of 2010, Scott Christie — who was also one of Lowerys’ four owners and the brother of Lemesani’s manager, another of the owners — asked Lemesani for help building his new house. Lemesani had experience has a general contractor, so he agreed to lend his expertise but at an additional fee to his Lowerys pay.
Lemesani reviewed the plans, obtained quotations for heating, plumbing and electrical contractors and arranged for excavation He also drew up the permits and supervised the foundation construction.
Lemesani gave Christie an invoice for $5,000, but Christie accused him of taking advantage of him. Lemesani was shocked and said he wouldn’t build the house, but reduced the invoice to $1,400. However, Christie said he wouldn’t pay more than $700 and if Lemesani refused to accept that amount, his employment would be in jeopardy.
Afterwards, Lemesani said Christie treated him poorly at work and others in the office also shunned him.
Christie denied asking Lemesani to be his general contractor and said he didn’t want to monopolize his time because of his duties with Lowerys. He said the invoice surprised him and it didn’t have any details on the work done. There was no formal agreement because any work Lemesani did was on office time for which Lowerys paid him. Christie also indicated he wasn’t Lemesani’s manager and didn’t have the authority or right to threaten Lemesani’s job.
Other employees testified that Lemesani had a poor attitude towards co-workers and was critical of other sales representatives.
Soon after, Lemesani’s manager — and Scott Christie’s brother — withdrew leasing schedules for copiers that had previously been given to Lemesani. His manager said this was for security reasons because the schedules contained sensitive information and Lemesani had been accused of using the schedules to poach clients from other sales representatives. Lemesani was unable to find out when leases expired and what new terms could apply to buy-outs, which he felt hurt his ability to service customers. Leasing schedules were withdrawn for all staff, but Lemesani was the only one who complained.
Also soon after the invoice incident, Lemesani requested four weeks of vacation to go to Panama — normal company policy was a maximum of two weeks at a time. He made the request in November 2010, but his manager took nearly one month to reply. His manager granted the request, but also held back Lemesani’s quarterly bonus — it was based on making certain quarterly targets — cancelled out-of-town trips, and forbid him from selling office furniture. Lemesani claimed he was “crushed,” but still took his vacation. He said when he returned, the owners treated him coolly.
Every summer, the owners of Lowerys held a tennis party at their cottage and Lemesani was usually invited to cook. However, in 2011, they didn’t invite Lemesani and he believed it was because of the invoice dispute the previous summer. Though it wasn’t a workplace event and there had been a few years previously when he hadn’t been invited, he considered it to be workplace harassment because it was an opportunity to make contacts and the owners’ attitudes bled into the workplace at Lowerys. Christie argued that they only invited Lemesani to cook when they hosted the party, and in 2011 they didn’t host it.
Anxiety attack ended active employment
On Aug. 19, 2011, Lemesani suffered an acute anxiety attack that necessitated hospitalization. His doctor provided a note indicating Lemesani would be off work indefinitely, though Lemesani didn’t say why. He applied for and received employment insurance benefits for three months, followed by long-term disability benefits.
In January 2012, Lemesani told the benefits provider he hoped to return to work with modified duties or a different occupation by the end of the year and Lowerys confirmed it would try to accommodate him.
In October 2012, the benefits provider learned Lemesani had been managing five rental homes and running a popcorn business, so it determined he had demonstrated an ability to return to work. Lowerys had a position available, but Lemesani provided a doctor’s note saying he wasn’t ready to return to work and he couldn't work around other people because of his anxiety disorder and depression. The benefits provider terminated his benefits and, with no further medical information offered, Lowerys terminated his health benefits on June 30, 2013 — it had been paying the full premiums since Lemesani had been off work.
Lemesani sued for wrongful and constructive dismissal, claiming his anxiety attack was caused by continuing harassment he suffered at work from Scott Christie and his brother. He cited the contracting invoice dispute, the cottage party exclusion, the bonus alteration, and withdrawal of leasing schedules as incidents of harassment, and also claimed Lowerys withdrew his expense account, which cost him valuable face-to-face time and limited his interaction with clients, and withdrew permission to travel to other areas in northern Ontario. Lemesani claimed 20 months’ salary in lieu of notice, $40,000 in human rights damages, and $60,000 in aggravated damages.
Lowerys argued sales representatives didn’t have expense accounts and Lemesani could only expense costs for clients with prior approval. It also said Lemesani only temporarily travelled monthly to other areas in northern Ontario to cover for a sales representative who left the company. Once staff were hired in the area, there was no longer any need to send Lemesani, whose sales there were “anemic” anyway, said his manager.
Lemesani also reported that his manager directed him not to sell office furniture, which would limit his income. This was another instance of harassment, said Lemesani. However, the manager stated that Lemesani’s assignment was to sell copiers and only sales representatives in remote areas were to sell all product lines. Selling furniture took away from Lemesani’s time selling copiers and other office machines.
The court found there was no workplace harassment, as Lowerys had reasonable explanations for all of the situations that Lemesani claimed were harassment. In addition, Lemesani’s claims were inconsistent and not credible. It also found Lowerys was willing to accommodate him when he wanted to return to work, but Lemesani didn’t provide medical information or try to return to work as part of the accommodation process — even though he was working in property management and running a business while on medical leave. As a result, there was no basis for human rights or aggravated damages — particularly since Lowerys continued to pay health benefits for some time after Lemesani ended his active employment — and Lowerys was only responsible for reasonable notice.
Since Lemesani had 15 years of service, wasn’t a supervisor and was 49 when terminated, the court found he was entitled to 10 months’ pay in lieu of notice, minus his earnings from his own company and his property management work.
For more information see:
• Lemesani v. Lowerys Inc., 2017 CarswellOnt 5767 (Ont. S.C.J.).
