Shorter shift offer was constructive dismissal

Supervisor didn't want worker back but he didn't make staffing decisions

An Ontario worker was constructively dismissed when a supervisor told her he didn’t want to see her again and her employer offered her a shorter shift to avoid him, the Ontario Labour Relations Board has ruled.

Lori Anderson was hired by Paula’s Food Services, a food concession operating at a steel mill in Sault Ste. Marie, Ont., in June 2007. The concession ran a cafeteria in the steel mill’s main administrative building as well as a canteen at the mill. Anderson worked Monday to Friday at the canteen.

The owner of the concession, Paula Pyette, worked mainly in the cafeteria but visited the canteen regularly and kept in telephone contact. Her son Derek supervised the canteen and was essentially Anderson’s direct boss.

In August 2012, Anderson was reprimanded and sent home for being disruptive. Anderson told Paula Pyette that Derek had fired her, but Paula told her this was not the case as only she could fire employees.

On Aug. 12, 2013, Paula Pyette called the canteen and spoke with Anderson. She asked Anderson to relay a message to another employee that the employee was not to leave a $100 bill in the float till for use the next morning, as she had on her previous shift. When the co-worker arrived for her shift, Anderson relayed the message.

The co-worker became upset at Anderson and told her she had no right to tell her what to do. The co-worker called Derek Pyette, who soon arrived at the canteen.

After speaking with the co-worker, Derek Pyette told Anderson to get out of the canteen and that he never wanted to see her again. Anderson left and called Paula Pyette, telling her that Derek had just fired her. The owner told Anderson he couldn’t fire her, so she would find out what had happened and get back to her.

The next day, Paula Pyette met with Anderson outside the canteen. Paula told Anderson Derek didn’t want her back at the canteen, but eventually offered her a four-hour daily shift that would allow Anderson to avoid contact with Derek and with the condition that she “not talk too much.” Anderson usually worked eight-hour shifts at the canteen, though on occasion she had worked four-hour afternoon shifts.

While Anderson and Paula Pyette were talking, Derek arrived and walked up to Anderson, shouting “what are you looking at?” Paula told him to leave them alone and go to the canteen. After he left, Paula Pyette told Anderson to think about her offer and give her an answer the next day.

The following day, Anderson declined the offer and said she would not be back. She then filed a dismissal complaint.

The board found Anderson was offered an opportunity to return to work after she was told to get out of the canteen, but this offer was only a four-hour shift arrangement on an indefinite basis when she normally worked eight hours a day. That arrangement would “effectively halve Ms. Anderson’s regular weekly pay from Paula’s Food Services, and this constitutes at least a constructive dismissal of Ms. Anderson’s employment that Ms. Anderson was entitled to reject and did so promptly,” said the board.

The board found it puzzling that Anderson was sent home on Aug. 12, 2013, for bad behaviour, as there was no evidence that Anderson actually demonstrated such behaviour. It appeared Anderson only passed on a message to her co-worker and the co-worker reacted negatively. Paula Pyette tried to explain it was Anderson’s tone that caused the problem but neither of the Pyettes witnessed the exchange. They both accepted the co-worker’s account without giving Anderson a chance to give her side of the story.

The board found it likely that Derek Pyette was displeased with Anderson and he also told his mother he didn’t want to see Anderson in the canteen again. Paula Pyette’s offer of a shortened shift was an attempt to deal with her son’s strong feelings against Anderson while keeping Anderson employed. However, there was no indication that the offer was temporary and, as a result, was a fundamental change in the terms of employment.

The board determined Anderson was constructively dismissed and her resignation was a reasonable response. Paula’s Food Services was ordered to provide appropriate termination pay under the act. See 1704717 Ontario Ltd. v. Anderson, 2015 CarswellOnt 6814 (Ont. Lab. Rel. Bd.).

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