Worker wanted severance package given to other workers who stayed until location closed
This instalment of You Make the Call features a worker who claimed constructive dismissal after he accepted other employment before his existing employer offered him a new position.
Scott Lawson was hired as a bus mechanic in December 2000 by First Canada, a Toronto-based charter bus company. He worked in First Canada’s garage located in Thornhill, Ont., just north of Toronto. He initially lived about 68 kilometres away from the garage, but soon moved closer where his commute was 38 kilometres. Eventually, he transferred to First Canada’s garage in Newmarket, Ont., which was only a few kilometers from his home.
In January 2012, First Canada announced it had lost a key contract with the municipality of York Region. The contract would end on Feb. 27.
Lawson contacted the bus company who won the contract with York Region and applied for a bus mechanic job in Newmarket. The other company offered him a job and Lawson accepted. Shortly after, on Feb. 7, First Canada offered him a mechanic position back at the Thornhill garage at a slightly less hourly wage — $2.10 per hour less initially — and was unionized — a change from his current non-unionized position. However, the company offered him a one-time lump sum payment of $4,000 that would make up the wage differential for 48 weeks, at which time a small wage increase would make the difference $1.75 per hour.
Lawson declined the job offer and resigned effective Feb. 17. He started working at the new company a few days later.
On March 31, First Canada closed its Newmarket garage. All employees there who were not offered other jobs and worked until the garage’s closing date were given termination and severance pay. Some of those employees were hired by the new company for which Lawson had already started working.
When Lawson found out about the termination and severance pay his former colleagues at the Newmarket garage received, he filed a constructive dismissal complaint. Lawson argued that he didn’t accept the transfer to Thornhill because he would have suffered a wage loss after 48 weeks, he would have had a longer commute, and he would have to work in a unionized workplace — something he didn’t want to do.
You Make the Call
Did Lawson refuse a legitimate transfer and resign his position?
OR
Was Lawson constructively dismissed?
If you said the transfer was legitimate and Lawson resigned his position, you’re right. The adjudicator found the wage reduction — which amounted to 5.8 per cent and was delayed by 11 months thanks to First Canada’s offer of a lump sum payment — was modest and not a significant change.
The adjudicator also found that although Lawson’s commute to the Thornhill garage would be longer — 38 kilometres each way rather than a few — he had commuted that distance and longer in the past and many people commuted that distance. The adjudicator determined that Lawson’s commute to the Thornhill garage would have been only a few minutes more than the average Toronto-area commuter, according to a study.
The adjudicator also found Lawson gave no explanation as to why he didn’t want to work in a unionized position and many people would feel it would be better to be unionized.
It was likely Lawson accepted a job with the new company before he was offered the transfer because he felt he was avoiding a termination, ensuring he would still have a short commute and keep his same wage, avoid a break in employment, and work with some of the same people. Lawson would also be able to work on the same type of buses since the new company took over the transit contract with York Region.
“Mr. Lawson made a sensible and understandable decision. Anyone in his situation would have made the same choice,” said the adjudicator. “However, that is not the test for a constructive dismissal as the issue is not the comparison of the two job prospects (Thornhill with First Canada vs. Newmarket with the new company), but rather whether the job transfer offer of First Canada was comparable to his previous position.”
The adjudicator found First Canada’s transfer offer was reasonable and none of the differences it had from Lawson’s position at the Newmarket garage made “a fundamental negative change to his employment.” As a result, Lawson was not constructively dismissed, said the adjudicator.
For more information see:
• Lawson and First Canada ULC, Re, 2015 CarswellNat 1639 (Can. Labour Code Adj.).
