Termination and offer need to be clear
A woman we will call Anna worked part time in a meat department at a grocery store for ten years. She was a good employee and had no complaints against her.
Anna lived in a mobile home in a trailer park with her husband and son and one evening a fire started and it burned to the ground. Anna called her boss the next morning, explained that she would not be to work that day because of the fire and indicated that she did not know when she would be back to work.
Not having heard from Anna by a few days later, her boss called her twice but the line had been disconnected.
During the next month, Anna was dealing daily with the insurance company, finding a place to rent, arranging for her home to be replaced and salvaging or replacing what she could from the fire. Since they found a mobile home in the same park to rent, her address didn’t change. After a week, her phone was reconnected with the same number.
Despite the fact that Anna had been a good employee for ten years, other than two phone calls during the week Anna did not have a phone, the employer made no effort whatsoever to contact Anna. On the other hand, Anna made no effort to contact the employer either.
A month after the fire, the boss decided that since he hadn’t heard from Anna, she had quit her job and he had head office prepare a record of employment indicating that she had quit. He just sat on it, however, and did not forward it to her mailing address, which he had.
Two weeks later Anna saw her doctor and was diagnosed as suffering from depression. The doctor wrote a note indicating that she was unfit to work at that time and would be reassessed in a month. Anna went to the grocery store to hand in the note and get an employment record indicating that she was off ill. Before she could hand in the note, she was given a record of employment indicating that she had quit. She was so startled that she did not even hand in the doctor’s note.
Anna hired a lawyer who wrote a letter, now three and a half months after the fire, in which Anna took the position that she had not quit. The letter advised the employer that Anna was suffering from insomnia, depression and anxiety and was seeing a doctor. The lawyer asked for ten months pay in lieu of notice for the termination and an extra six months because of the manner in which Anna had been treated. The employer took the position that by not contacting her boss for so long a period, Anna had effectively resigned.
After some letters back and forth, the lawyer for the employer said that Anna was free to return to work and that at some later date, the employer would advise her as to her work schedule and their expectations regarding her job.
Keep in mind that every employee who is suing for wrongful dismissal has an obligation to try to mitigate their damages by finding new employment. At trial, the employer argued that regardless of whether or not Anna had been terminated or quit, she was unreasonable in not accepting the offer to return to work.
The judge at trial appropriately said that in order to even consider the issue of whether Anna should have accepted the offer to return once she was well enough to work, the offer had to be clear and unequivocal. Since she was not advised of what she would be paid, what her job would be or what her hours might be, it was not an effective offer.
More importantly, the judge decided that Anna was in fact terminated. She had been a good employee for a decade and the employer’s two phone calls in the seven days immediately following the fire were a paltry effort to make contact with her. The judge decided that the employer had been insensitive in not making more effort to get a hold of her and taking the position that she had quit given that it knew that her house had burned down.
Anna was awarded 11 months pay in lieu of notice, an extraordinary amount for somebody working in a meat department for ten years, as well as another $20,000.00 in general damages on the basis that the employer’s treatment of her had aggravated her medical condition.
While I don’t disagree with the judge that the employer should have done more before it jumped the gun and took the position she had quit, employees should never count on this case for the proposition that they can simply disappear for six weeks without any contact with their employer. Quite frankly, I think Anna got lucky.
In this case, Anna had been off for an extended period for a work-related injury a few years before and talked to her boss at least once a week. It’s hard to believe she did not understand that she had some sort of obligation to make some sort of contact.
Frankly, if I was the judge, Anna would have had to come up with a better explanation for why she didn’t call or contact her employer for an entire six weeks other than she was busy and upset. If you have the wherewithal to spend significant time each day on the phone with the insurance company working out the claim, what’s a five minute phone call to your boss? Anna still might have won but here damages would have been far less as she was partly the author of her own demise.
As published in the Hamilton Spectator, October 4, 2010