Worker fired for refusing vacation change

This instalment of You Make the Call looks at a case involving a worker who was fired after she refused to postpone a previously approved vacation

In mid-October 2004, Evon Watson, who had been employed by Summar Foods in Mississauga, Ont., for about 10 years, was fired after she refused to comply with her employer’s request to postpone a two-week trip to Barbados.

Watson, who was 53 when she was fired, was operations manager at Summar Foods, a small family-owned company that manufactures specialty ingredients for the dairy industry. Her salary was about $50,000 per year and she was entitled to three weeks’ vacation per year.

In early 2004, Watson sought and received approval to take two weeks off starting Oct. 4. After receiving approval, she made plans to travel to Barbados. Watson, a native of Barbados, hadn’t been there since 2000. She was travelling to visit her ailing brother who had suffered a stroke and to attend to some pressing tax and maintenance matters involving property she owned in Barbados. Her husband had also gotten time off from his job to go with her on the trip.

But problems arose on Sept. 29, 2004. That’s when, according to Watson, Mohamed Elguindy, the president and principal owner, phoned her. Elguindy, phoning from Florida where Summar Foods has another plant, told her he wasn’t coming to Ontario to take over her duties while she was on vacation and she needed to change her plans. If she insisted on going, than Elguindy said he would only cover one week, so she would have to cut her vacation short.

Watson said she told Elguindy that she already had tickets, and he offered to pay the difference in the cost of her ticket if she would change the date of her travel plans. She asked if he would also pay for the cost of changing her husband’s ticket, and he said he would get back to her.

She didn’t hear from him again until Oct. 1. Watson said that, since she had no clear offer to pay for her husband’s full cost of the requested cancellation and no firm proposal about when she might be able to take the trip, she expected to take her full vacation as previously agreed. Watson told Elguindy she had completed all necessary tasks so everything would be set for him when he arrived early the following week as expected. He made the unusual request of asking her to give the keys to the office and petty cash to Eugene Daiski, a co-owner.

Watson admitted that when she left the office that day, she was under the impression that if she stayed in Barbados the full two weeks she may not have a job to return to. But she hoped her employer would, on sober reflection, reconsider its position.

When she returned, a notice of registered mail from Summar Foods was awaiting her. It contained no letter, but only a cheque for the pay period ending Oct. 15, 2004, and a record of employment indicating Watson had quit her job as of Oct. 15.

Elguindy’s recollection of the events was slightly different. He said he spoke to her on Sept. 28 and had a short followup conversation with her on Sept. 29. He had placed the first call from the Florida plant to tell Watson there was damage to the plant caused by Hurricane Jeanne which had struck the state the previous weekend. Because it was vital to get that plant back into production quickly, he asked her if it was possible to cancel the second week of her planned vacation.

You make the call
Was the employer justified in firing Evon Watson?
Was she wrongfully dismissed from her employment?

If you said Watson was wrongfully dismissed, you’re correct. Watson had made plans to be out of the country after having received prior approval of the scheduling of her vacation entitlement in accordance with long-standing policy.

“Entitlement to a vacation and other time off is a very important benefit for any employee,” the Ontario Superior Court of Justice said. “In this case, it was a specific term of Mrs. Watson’s employment contract with Summar Foods. Although it might fairly be said that entitlement to take vacation in the allocated amount whenever one pleases is tempered by the fluctuating business needs of the employer, it nevertheless is a benefit which should not be interfered with lightly.”

The court said it is important for working people to “enioy time off with their families or alone, in tropical islands or at home, to recharge their batteries.”

Even in the case of a small business such as Summar Foods, contingent arrangements should be in place to deal with such absences, whether planned or unexpected, to ensure vacations are not arbitrarily disrupted, the court said.

The court said it preferred Watson’s version of the events over the employer’s.

“Even if I were to accept Mr. Elguindy’s evidence that he told Mrs. Watson in detail why he was making this request of her, which I do not, I would nevertheless be of the view that his request was unreasonable,” the court said.

Asking the employee to change her important and established plans at the last minute to deal with business problems which should be the responsibility of the company to address is unreasonable, said Justice Elizabeth Stewart.

The employer’s position in this case was unduly rigid and inflexible and the directive to change the plans was unreasonable. The decision to terminate her employment over it was “ill considered and impulsive,” the court said.

“This was the first and only time Mrs. Watson had refused to comply with one of his directives, having had a long history of loyalty and dedication to Summar Foods,” said Justice Stewart.

Reasonable notice period

In calculating the notice period, the court looked at Watson’s age (53), her salary ($50,000) and the fact she essentially ran the complete administrative side of Summar Foods’ office operation in Mississauga and held the formal title of operations manager.

She had what the court called a “stellar” record of 10 years of loyal and dependable service to the company.

Justice Stewart said 12 months’ reasonable notice would be appropriate in this case.

Duty to mitigate

Justice Stewart then turned her attention to whether or not Watson failed to mitigate her damages. Employees who are wrongfully dismissed have a duty to mitigate their damages by looking for alternate work.

According to Watson, she began looking for work immediately after being fired, taking off a very short time in order to recover from the shock and stress it caused.

She was unable to find a job until Sept. 26, 2005, when she started work as a customer service person for “Poppa Corn” at an hourly rate of $12 for a 40-hour week. Unfortunately, her employment with Poppa Corn was terminated shortly after she started because she couldn’t keep up with the work.

She remained unemployed, except for a part-time job with Wal-Mart — a position she held while she was still working for Summar Foods.

Summar Foods argued Watson’s efforts to mitigate her damages were inadequate. In particular, it argued she should have sought a full-time job at Wal-Mart to compensate for her lost income.

There was no evidence presented that a suitable full-time job was available at Wal-Mart and, in any event, Watson did not want to work at the store full time. She preferred to seek another full-time job similar to the one she had at Summar Foods, supplemented by additional part-time hours at Wal-Mart.

Justice Stewart said Watson’s position was “reasonable and especially so during the time frame covered by the 12 months’ notice that would apply.”

The court pointed out that Watson registered with a variety of employment and placement agencies. She checked newspaper advertisements and attempted to network with friends and acquaintances to find a suitable position.

Punitive damages

While it was regrettable that a single altercation resulted in the dismissal of a “conscientious and loyal employee,” the court said this was not a case that warranted punitive damages.

“Summar Foods had been a decent and responsible employer to Mrs. Watson, and she and Mr. Elguindy had enjoyed a very compatible and respectful working relationship,” said Justice Stewart.

She said the strain of what was happening in Florida because of the hurricane resulted in impulsive and ill-considered demands on Watson.

“However unfortunate the circumstances of the termination may have been, the manner in which the termination was carried out was not, in my view, an independent actionable wrong or amounts to conduct that should be punished by way of an award of damages,” said Justice Stewart. “The termination of Mrs. Watson’s employment was merely bad judgment on Mr. Elguindy’s part that had an unfortunate result for all concerned.”

For more information see:

Watson v. Summar Foods Ltd., 2006 CarswellOnt 7062 (Ont. S.C.J.)

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