Longer commute doesn’t sit well with employee

Employee refused to report to new location after old office closed

This instalment of You Make the Call features an employee who didn’t like the changes in his job after his employer was purchased by another company.

Mark Hicks worked as a supervisor for a business called Fruit Farms in Brantford, Ont. Fruit Farms went out of business in 2008 and another company, Flash Freight Systems, purchased its assets and hired Hicks as Brantford Operations Supervisor effective Sept. 1. The offer of employment it provided to Hicks stated he would “continue to be responsible for the ongoing daily operations at the Brantford location, as well as providing daily direction for administrative personnel working at the Brantford facility.

The offer also stated benefits would continue without interruption and he would be given a taxable benefit of $100 every week to cover gas and vehicle expenses incurred while doing job duties. Hicks signed the employment agreement and confidentiality agreement.

After the takeover by Flash Freight Systems, the primary function of the Brantford facility was to facilitate deliveries of goods by a company called Consolidated Freezers for a store delivery program. In August 2009, Consolidated Freezers lost its contract for the program so this function ended. Hicks agreed to take over the day-to-day administration of Flash Freight System’s smaller local dispatch operations without objection. This arrangement continued for two years.

On July 20, 2011, Flash Freight Systems announced the Brantford operations were no longer sustainable and asked Hicks to report to work at its Ariss, Ont., office. Hicks was reluctant to make the move as it would increase his commute by 55 km each way, which he claimed would double his driving time.

Flash Freight tried to work out an arrangement with Hicks over the next few months, including a proposal that Hicks report to Ariss three days a week and work from home the other two days. It was willing to accept this arrangement because Hicks was a valued employee, but Hicks didn’t respond to this offer. The company then told him it would provide him with a computer and Internet support at his home to help make the arrangement work. However, it heard nothing from Hicks until it received a request for a reference for Hicks from another employer.

By April 2012, the company reached the conclusion that its operations were being impeded by remote working from Brantford and told Hicks it couldn’t continue to be kept in limbo. It asked Hicks to report to work in Ariss on April 16 and sent him an offer of employment for the new location.

Hicks replied that he was not accepting the change to his employment because it wasn’t “practical or reasonable.” He didn’t sign the offer of employment and didn’t report to work the next two days, in either Ariss or Brantford. He then reiterated his refusal and requested a record of employment, stating “if I can’t work from home or from Brantford as I was hired to do then you need to fire me.” Hicks then filed a complaint of constructive dismissal.

You Make the Call

Did Hicks resign from his employment?
Was Hicks constructively dismissed?

If you said Hicks resigned from his employment, you’re right. The arbitrator found Hicks was considered a “capable and productive employee” and Flash Freight Systems had no desire to end his employment — this was evident when the company took over the business for which Hicks worked and wanted him to continue in his role at the Brantford facility, and then asked him to transfer to Ariss when operating the Brantford facility became no longer viable. The “friction point” was over the increased driving time and expense Hicks would face commuting to the Ariss office rather than Brantford.

The arbitrator also found business conditions had changed, requiring Flash Freight Systems to transfer Hicks from Brantford. It brought this to Hicks’ attention and tried to work out an accommodation by providing some work-from-home opportunities. However, Hicks remained “silent or noncommittal” for months until the company was forced to act. When it received the reference request, that suggested Hicks was taking steps to seek alternate employment, said the arbitrator.

Though Hicks would have to drive further to the Ariss office, the impact of this was partly offset by the $100 per week travel allowance he received and the fact the company was willing to let him work from home twice per week, said the arbitrator.

Ultimately, the arbitrator determined that while Hicks’ work location changed, his job duties and compensation did not and the effects of the location change were not enough to constitute constructive dismissal.

“In the final analysis, Hicks did not accept the need for him to change locations and his discontent was rooted in the increased travel time and expense to report to the Ariss office,” said the arbitrator. “While I am prepared to concede this may be inconvenient, I am not satisfied Hicks has proven the change constitutes a fundamental breach of his employment contract.” See Hicks and 1210841 Ontario Ltd., Re, 2014 CarswellNat 5075 (Can. Arb.).

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