Belief employee intended to take false LTD not enough to warrant posting for replacement
After 11 years as the sole service manager for Lee Munro Chevrolet in Paris, Ont., Franklyn Patterson apparently had had enough of his job. The feeling must have been mutual.
The day after a long shift, Patterson’s wife contacted the company and told them he was not well and would not be at work for the next few days. However, the next day, Patterson was confused to see his own job posted in the classified section of the local paper. He hadn’t been fired and he hadn’t resigned.
The effect of seeing his job posted was devastating for Patterson, who felt he was no longer welcome at work. Believing the posting made it impossible to continue in his position, Patterson sued the company, arguing the posting should be equated with his dismissal.
According to Lee Munro, the principal of the dealership, Patterson’s claim for sick leave was a sham. Munro believed Patterson’s absence from work was a pre-meditated scheme for making a claim under the company’s new disability plan. Having heard Patterson’s wife was receiving long-term disability payments, he was certain Patterson’s plan was to do the same, so that the both of them could be off work together. Once Patterson left work, he said he didn’t think the service manager would return, so advertising for the job was a logical step.
Although the Ontario Superior Court of Justice found Munro’s belief in Patterson’s plan was reasonable and honestly held, it was not based on evidence but rather speculation and gossip. Since Patterson had provided a doctor’s note, the court accepted he was genuinely ill and unable to work at that time.
In an employment lawsuit, honest intentions don’t always matter. Workplace rights are assessed based on a reasonable course of action. The court said it was an “inescapable conclusion” that placing the advertisement for Patterson’s job in the news without any explanation or even informing him was tantamount to dismissal. This was because Patterson’s assertion that the posting rendered his continued employment intolerable was accepted by the court. Patterson was awarded almost one year’s salary.
Job posting not constructive dismissal after severance offer
However, when an employer advertises for a current employee’s job it will not always lead to a finding of constructive dismissal. In 2007, a British Columbia court came to the conclusion Ray Evans had effectively resigned, by asserting that he had been constructively dismissed when his job was posted on a career website.
Following a flare-up with his bosses over his level of autonomy, it was suggested that Evans submit his resignation in exchange for 12 weeks’ severance. However, before he could decide on the company’s offer, Evans was astonished to find his job advertised online. Evans considered himself fired and sued for constructive dismissal.
In that case the court was not persuaded that the Internet advertisement amounted to Evans’ constructive dismissal. Even had the employer intended to terminate Evans’ employment, and was looking for a successor, it would not constitute a termination until it actually occurred, the court said.
Tips for employers
The different findings in the two cases were based, in part, on factors such as the sincerity of claims for sick leave and the employers’ motives for posting the position. Therefore, if an employer is going to advertise for a position that is not yet vacant, it should consider the following:
Silence is not always golden. While putting succession plans into place may be a reasonable course of action, there may be a duty to inform employees why a job is being posted and what it means to their own employment. The result could have been different in the Patterson case had the employer not acted so hastily in posting Patterson’s job.
Claims for sick leave, however dubious, should be handled with caution. More often than not, a doctor’s note is evidence of a genuine illness.
Don’t rely on water-cooler gossip in asserting workplace rights. Courts typically place much more weight on documentary evidence or a pattern that has clearly emerged.
For more information see:
•Evans v. Listel Canada Ltd., 2007 CarswellBC 427 (B.C. S.C. [In Chambers]).
•Patterson v. Lee Munro Chevrolet Ltd., 2009 CarswellOnt 2530 (Ont. S.C.J.).
