You make the call
This instalment of You Make the Call features an Ontario worker who left work and made some demands of her employer.
Karen Anderson worked as an office manager for Total Instant Lawns, a sod installation company in Ottawa. As the company operated on a seasonal basis, Anderson was on a fixed-term contract running from April to December 2018. Her duties included recording worker’s hours that they sent to her and preparing the payroll and cheques for the CEO to sign, and scheduling work crews.
Anderson’s husband, also worked for Total Instant Lawns on a temporary basis.
On July 5, 2018, the CEO asked Anderson to provide payroll records for all the employees because he found some discrepancies. The next day, she went into his office to pick up the payroll cheques, but she noticed that he hadn’t signed her husband’s cheque. She texted the CEO about it and he said that there was a problem with the hours listed for her husband — his hours weren’t supported by texts on a cellphone app the company used, while all other employees’ hours were. He also wanted to deduct pay from her husband’s last paycheque because he hadn’t brought the truck back to his office on his last day, so another employee had to retrieve it.
Anderson responded that she recorded the hours as she received them and she felt it wasn’t fair or ethical. She also texted that “I’m ready to leave and return when [her husband] has the pay owed to him.” After some more back-and-forth communication, Anderson was unable to resolve the issue — the CEO insisted that Anderson’s husband’s hours were overstated and Anderson maintained that they were correct.
Anderson walked out of the office on the morning of July 6. According to Anderson, she told the other employee in the office that she was leaving for the day — she later said she had a headache and intended to return the following Monday. When she told the CEO, he asked her to leave her key, but she had already put the keys on his desk.
The other employee reported that Anderson said she had been fired due to a dispute, but the CEO said he was unsure whether Anderson intended to return to work.
That evening, Anderson and her husband hosted a meeting with most of Total Instant Lawn’s employees. They created a document that they called a “strike notice” that made demands related to pay rates and safety issues, as well as that “those who were wrongfully terminated” including Anderson should be offered their jobs back at full pay, with Anderson given authority to schedule the workers without alteration by management. The notice also demanded that Anderson’s husband be paid in full.
On July 7, the CEO was informed that the entire workforce had walked out and he was given the strike notice. He immediately texted Anderson to say she was barred from company properties and job sites, and from accessing company computers and accounts. He also demanded copies of every conversation with present and past employees, including “clock in and clock out” messages.
The CEO believed that Anderson had helped organize the work stoppage and contacted the other signatories. He was able to convince most of his employees to return to work.
Anderson sued for wrongful dismissal damages, while Total Instant Lawns argued that she voluntarily left her job.
You Make the Call
Did Anderson voluntarily leave her employment?
Did the company terminate Anderson’s employment?
IF YOU SAID Anderson voluntarily left her employment, you’re right. The court noted that a resignation must be clear and unequivocal, and a repudiation of an employment contract involves a refusal to perform an essential condition of the employment contract. In these circumstances, the court found that Anderson never unequivocally indicated to the CEO that she wasn’t returning to work and, in fact, the CEO was uncertain if she would return. In addition, the other employee in the office thought Anderson had been terminated. The situation was unclear, said the court.
However, the court found that the evidence indicated that Anderson had no intention of returning to work unless certain conditions were met. She didn’t instigate the work stoppage, but she was an active participant in organizing it, the court said. In the strike notice that she signed, Anderson demanded full control of scheduling over the CEO, which was a change in the terms of her employment. In addition, she failed to keep her husband’s hours and refused to provide a record of those hours, so Anderson was refusing to perform her duties, the court said in finding that Anderson repudiated her employment contract.
“In the circumstances, this behaviour constituted an attempt on Ms. Anderson’s part to make significant changes to her duties as outlined in her employment contract and it was incompatible with her continued employment,” said the court in dismissing Anderson’s wrongful dismissal claim.
For more information, see:
- Anderson v. Total Instant Lawns Ltd., 2021 ONSC 2933 (Ont. S.C.J.).