Reasons for decision

John Lennox,

complainant,

and

882819 Ontario Limited, o/a Morrice Transportation,

respondent.

The panel of the Canada Industrial Relations Board (the Board) was composed of Ms. Jennifer Webster, Vice-Chairperson, sitting alone pursuant to section 14(3.1) of the Canada Labour Code (the Code). A hearing was held on November 25, 2021.

Appearances

Mr. John Lennox, on his own behalf;

Ms. Janet Morrice, for 882819 Ontario Limited, o/a Morrice Transportation.

I. Nature of the Complaint

[1] In August 2020, Mr. John Lennox (the complainant) filed a complaint with the Labour Program of Employment and Social Development Canada (ESDC), pursuant to section 240(1) of Part III of the Code (Standard Hours, Wages, Vacations and Holidays), in which he claimed that he had been constructively dismissed from his employment by 882819 Ontario Limited, o/a Morrice Transportation (the respondent or Morrice Transportation).

[2] The ESDC referred the complaint to the Board on December 11, 2020, after the complainant requested adjudication, and a hearing was held by videoconference on November 25, 2021.

[3] Mr. Lennox was a long-haul truck driver for Morrice Transportation, a company that operates an interprovincial and international road transportation business out of Windsor, Ontario. He had worked for the respondent since May 2018. The complainant states that he was constructively dismissed from his employment. First, he argues that the employer changed the terms and conditions of his employment by considering him a part-time instead of a full-time truck driver. Second, he argues that a series of incidents that occurred in 2020, including incidents of alleged harassment, caused him to resign.

[4] The respondent denies that there was a constructive dismissal. It argues that it did not change the complainant’s status from full-time to part-time and contests the complainant’s version of the incidents that occurred in 2020.

[5] Based on its review of the parties’ evidence and submissions, the Board finds that the respondent did not constructively dismiss the complainant and that, therefore, the complaint of unjust dismissal should be dismissed. These are the Board’s reasons.

II. Background and Facts

[6] The events that led to this complaint occurred in mid-July 2020. The complainant had been dispatched to the United States on July 12, 2020. During this trip, he identified that his truck had an airbag overinflation issue. He advised the respondent of the issue. The respondent offered the complainant the choice of having an airbag repair performed in the United States or at the Morrice Transportation shop in Windsor upon his return. The respondent also confirmed that the airbag overinflation concern was not an emergency repair. Based on his conversation with the respondent, the complainant decided to return to Windsor for the airbag repair.

[7] The complainant returned the truck to the respondent’s yard in the evening of July 14, 2020, and the airbag repair was completed early in the morning of July 15, 2020.

[8] After the completion of the repair, Mr. Shawn Voakes, the respondent’s Dispatch Manager, emailed the complainant, advising him that the truck would be ready to go at 9:00 a.m. and asking him to confirm what time he would be arriving for work. The complainant responded that he was not available to work until July 18, 2020, because he had submitted his planned time available (PTA) for that date. Mr. Voakes told the complainant by email that he was required to come in and complete his work week, and he copied this direction to Mr. Rob Morrice, the respondent’s President and Operations Manager.

[9] On July 15, 2020, at 8:04 a.m., Mr. Morrice wrote to the complainant in response to the email exchange with Mr. Voakes as follows:

John if part time is what you want we are ok with it

But to be a full time driver again we need full time hours.

You cant work 1 trip take off 4 days than 1 trip than 5 days off

I will pass it on to safety to change you to part time and take you off the health benefit program

Than you can work when you want and we wont bug you or require you to meet the min miles needed.

[sic]

[10] The complainant and Mr. Morrice then exchanged the following series of emails that same day:

[The complainant’s email to Mr. Morrice at 8:34 a.m.]

The truck needed repairs.

I managed to get the Company truck back to Windsor as Matt [the respondent’s Fleet and Property Manager] requested so I set my pta and have planned accordingly. I’m available plenty of hours and miles on an ongoing basis. If you prefer to confuse and complicate this simple situation that is your decision and I will adjust accordingly. My pta is set for Saturday 7/18.

[Mr. Morrice’s email to the complainant at 8:45 a.m.]

The shop explained to you on Tuesday on the phone the truck would be ready at 8am today, as the issue was minor repair and matt even offered to come back Tuesday night to fix so you could continue to work as planned./ I’m sorry but full time isn’t avail for your work schedule we need 5 days out of drivers, you had no time booked off so you would be excepted to finish your week, you wont which is fine and this will move you to part time casual driver, which I think wil work best for our operation,

If part time isn’t for you, we understand. We might not be the right place for your future. But the pta that you entered is not accepted and be documented as refusal of work.

[The complainant’s email to Mr. Morrice at 9:01 a.m.]

Matt told me he would contact me to advise when truck may be ready and Matt did not contact me to confirm repair completion.

My on duty hours are regularly more than full time levels and approx 8000 to 9000miles per month according to available business conditions.

There is no refusal involved only proper planning.

So I am confused with your information and will adjust as need.

[Mr. Morrice’s email to the complainant at 9:03 a.m.]

Have a good day john

[The complainant’s email to Mr. Morrice at 9:11 a.m.]

You as well Rob.

[sic]

[11] There was no further communication between Mr. Morrice and the complainant on July 15, 2020.

[12] The email exchange between Mr. Morrice and the complainant was copied to Mr. Matt Asciak, the respondent’s Fleet and Property Manager. After Mr. Asciak received the emails between Mr. Morrice and Mr. Lennox, he wrote to the complainant to confirm their earlier discussions about the airbag repair and to advise him that the truck was ready to depart the Windsor yard on July 15, 2020. Mr. Asciak explained in his email that they had discussed that the repair could be completed in the evening of July 14, 2020, upon Mr. Lennox’s return, but that the decision had been made to fix the airbag the following morning because Mr. Lennox had reached his maximum work hours and needed rest. Mr. Asciak further noted that he had understood from the complainant that he would be setting his PTA for between 9:00 a.m. and 10:00 a.m. on July 15, 2020, and that he would be available to work that morning once the airbag repair was completed.

[13] The complainant responded to Mr. Asciak’s email, stating that he had not received confirmation from him about the completion of the repair and that he was, therefore, required to “plan accordingly.”

[14] There was no further contact between the complainant and any representative of the respondent until July 17, 2020, when Ms. Jenny Sefton, a driver manager, emailed the complainant, seeking to dispatch him the following week. She offered him a load with a departure time of 8:00 a.m. on July 19, 2020, that required a delivery to Pennsylvania on July 20, 2020. The complainant responded that, although he wanted to accept the load, there was some confusion that he needed to clarify with Mr. Morrice. Ms. Sefton advised him that Mr. Morrice was absent, and she asked him to confirm that he was refusing the load so that she could move on to other drivers. The complainant stated that he did not intend to refuse it but that he could not take the load assignment until he clarified the meaning of Mr. Morrice’s communications from July 15, 2020.

[15] On July 21, 2020, when Mr. Asciak was performing his regular morning yard check, he noticed that the complainant’s truck was parked in the yard. He obtained the key for the truck and searched inside the cab. He noted that the truck had been emptied of the complainant’s personal belongings. He sent an email to Mr. Morrice at 10:33 a.m. in which he wrote that he assumed that the complainant had quit because his personal belongings had been removed from the truck. The respondent concluded that the complainant had quit because he had refused work and removed his personal belongings from his truck. Given this conclusion, the respondent cancelled the complainant’s health insurance and sent him a form letter asking him to confirm his voluntary resignation and return any company property.

[16] The complainant did not contact Mr. Morrice after the email exchange on July 15, 2020, until he sent a letter to him on July 21, 2020. In this letter, he claimed that Mr. Morrice had wrongfully changed the terms and conditions of his employment through the emails of July 15, 2020, and that these changes had been contrary to their established employment relationship and made without his consent. The complainant also alleged that the respondent had wrongfully circulated inappropriate and slanderous comments about him to other staff members, failed to provide notice of the change from full-time to part-time status and threatened his safety and well-being by removing his employee benefits. In addition, he advised Mr. Morrice that he had removed his “Professional Driver Equipment” from his truck and that he had date-stamped photographs that confirmed that the truck was in proper and clean condition. He also advised Mr. Morrice that he had sent all Morrice Transportation items to the respondent by registered mail, and he identified that these items included his keys and fuel cards. Finally, the complainant requested that the respondent forward to him all wages, vacation pay, severance, damages and tax forms and a Record of Employment.

[17] The next day, the complainant received the respondent’s form letter asking him to confirm his voluntary resignation and return any company property. He did not sign or return the letter of voluntary resignation. By that point, the complainant had already returned all company property.

[18] The complainant’s last day of work for the respondent was July 14, 2020.

III. Analysis and Decision

[19] The complainant has not provided any objective or direct evidence that the respondent terminated his employment. The complainant argues, however, that he was forced to resign by the respondent’s conduct on July 15, 2020, and that, therefore, he was constructively dismissed. He also argues that the respondent harassed him and deliberately created obstacles to obstruct his work performance through a series of incidents that occurred before July 15, 2020. He seeks compensatory damages for lost wages, aggravated damages for pain and suffering and an order that the respondent amend his Record of Employment.

[20] The respondent requests that the complaint be dismissed because the complainant effectively resigned by refusing work and then abandoning his position.

[21] The central issue in this complaint, then, is whether the respondent constructively dismissed the complainant on or around July 15, 2020, through Mr. Morrice’s emails. Generally, in unjust dismissal cases, the employer has the burden of proving that the dismissal was just. However, in cases dealing with allegations of constructive dismissal, it is the complainant who bears the burden of proof. Accordingly, in this matter, Mr. Lennox must demonstrate to the Board that he was constructively dismissed.

A. The Legal Principles of Constructive Dismissal

[22] The concept of constructive dismissal is based in common law. The Supreme Court of Canada (SCC) considered the common law principles in Farber v. Royal Trust Co., [1997] 1 S.C.R. 846 (Farber).

[23] The issue in Farber was whether the unilateral changes that the employer had made to the appellant’s employment contract amounted to constructive dismissal. The appellant worked as a regional manager for Western Quebec. The employer advised him on June 4, 1984, that his position was being eliminated as part of a major restructuring, and it offered him financial compensation at a lesser rate and a manager position at a different branch. The different branch was problematic and unprofitable. The appellant sued the employer for damages on the ground that he had been constructively dismissed.

[24] The SCC outlined the following definition of constructive dismissal in Farber:

Where an employer decides unilaterally to make substantial changes to the essential terms of an employee’s contract of employment and the employee does not agree to the changes and leaves his or her job, the employee has not resigned, but has been dismissed. Since the employer has not formally dismissed the employee, this is referred to as “constructive dismissal.” By unilaterally seeking to make substantial changes to the essential terms of the employment contract, the employer is ceasing to meet its obligations and is therefore terminating the contract. The employee can then treat the contract as resiliated for breach and can leave. In such circumstances, the employee is entitled to compensation in lieu of notice and, where appropriate, damages.

(page 858)

[25] The SCC had to determine whether the unilateral changes that the employer had imposed in Farber had substantially altered the essential terms of the employment contract to support the conclusion that the appellant had been constructively dismissed. It noted that the employer does not have to have intended to force the employee to leave their employment or to have been acting in bad faith when making those substantial changes.

[26] The SCC concluded that, when the employer’s offer was made, any reasonable person in the same situation as the appellant would have concluded that the employer had substantially altered the essential terms of the employment contract. The SCC allowed the appeal given that the change had involved a significant and serious demotion and that the salary terms had been considerably altered.

[27] In Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10; [2015] 1 S.C.R. 500 (Potter), the majority of the SCC described the developments in the constructive dismissal jurisprudence that had occurred since Farber. The SCC noted that, through the jurisprudence, there had emerged two branches or ways in which constructive dismissal could be established. The first of these branches involves a two-step analysis to assess whether there has been a substantial breach of the employment contract. First, the court must objectively determine whether the employer’s unilateral change is a breach, either express or implied, of the employment contract. If the change does constitute such a breach, the court must then assess whether, when the breach occurred, a reasonable person in the same situation as the employee would have felt that an essential term of the employment contract was being substantially changed.

[28] The SCC described the second branch of the test for constructive dismissal as involving a series of acts that show that the employer no longer intended to be bound by the employment contract. According to the SCC’s description, this branch requires a consideration of the cumulative effect of the employer’s past actions and then a determination of whether these actions demonstrated an intention of the employer to no longer be bound by the employment contract (see Potter, at paragraph 42).

[29] The SCC therefore concluded in Potter that, at common law, constructive dismissal can take two forms, being “that of a single unilateral act that breaches an essential term of the contract, or that of a series of acts that, taken together, show that the employer no longer intended to be bound by the contract” (Potter, paragraph 43). The legal standard to determine if there has been a constructive dismissal is whether a reasonable person in the same circumstances as the employee would have felt obliged to resign.

[30] In July 2019, Bill C-44 amended the Code provisions in relation to unjust dismissal complaints. As part of these amendments, the adjudication of these complaints was transferred from ad hoc adjudicators appointed by the Minister of Labour to the Board. The common law doctrine of constructive dismissal was generally accepted and applied by adjudicators in unjust dismissal complaints prior to the coming into force of Bill C-44.

[31] In addition, in Srougi v. Lufthansa German Airlines, [1988] F.C.J. No. 539 (QL), the Federal Court of Appeal (FCA) confirmed that the unjust dismissal provisions set out in the Code cover constructive dismissal. In that case, the FCA observed that there was no basis for thinking that Parliament intended for the unjust dismissal provisions to only cover dismissals made openly, without disguise, by a single and unambiguous action of the employer.

[32] It is the Board’s view that the common law doctrine of constructive dismissal applies to its consideration of unjust dismissal complaints. Therefore, in an unjust dismissal complaint, a constructive dismissal may be established if the evidence demonstrates either of the two branches set out in Potter. The Board will assess whether the employer’s conduct, either through a single unilateral act or a series of acts, when viewed objectively, is such that a reasonable person in the same circumstances as the employee would conclude that the employer no longer intended to be bound by the employment contract and that resigning was the only real option available.

B. Constructive Dismissal and the End of the Complainant’s Employment

[33] In the circumstances of the present matter, the Board must therefore consider the following questions in applying the legal principles relating to constructive law as outlined in Potter:

1. Did the respondent make a substantial change to the complainant’s employment contract on or around July 15, 2020?

2. Does the series of incidents that occurred prior to July 15, 2020, demonstrate that the respondent no longer intended to be bound by the employment contract?

1. Did the respondent make a substantial change to the complainant’s employment contract on or around July 15, 2020?

[34] The core of the complainant’s claim of constructive dismissal is that Mr. Morrice materially changed his employment contract through his emails on July 15, 2020, and that, due to this material change, he was forced to resign with cause.

[35] The issue that the Board must decide, therefore, is whether the respondent breached the employment contract through Mr. Morrice’s emails of July 15, 2020, such that a reasonable person would conclude that their only choice would be to resign. As the SCC outlined in Potter, the assessment of whether there has been a substantial breach is an objective one.

[36] The complainant argues that, in the employment relationship, he had the ability to establish and schedule his own hours of work and, as a consequence, the respondent could not deny his PTA or insist that he work on July 15, 2020. He submits that the respondent’s conduct in denying the PTA was a breach of this term of the employment contract.

[37] The complainant testified that he negotiated this employment term when he was hired. As evidence of the parties’ agreement about his work schedule, the complainant relied on an email dated April 27, 2018, that he had sent to the respondent’s Human Resources Manager. The complainant also stated that he had forwarded this email to Mr. Morrice as confirmation of the terms of his employment. According to Mr. Morrice’s testimony, however, he never received this email because the complainant had used the incorrect email address. Mr. Morrice also stated that he had never agreed that the complainant could schedule his own days on and days off.

[38] The Board does not accept that it was a term of the employment contract that Mr. Lennox could schedule his own hours and days off. In the complainant’s email to the Human Resources Manager, he described his understanding that they had agreed to “current On-Duty / Off-Duty planned schedules” for his days on and days off. There is, however, no evidence that the respondent agreed to these “schedules” or that the parties agreed that the “current” schedules would never be changed. In contrast to the complainant’s assertion that he controlled his schedule, Ms. Janet Morrice, the respondent’s Controller, testified that the terms of the employment agreement, including the driver schedules, are set out in the driver handbook and the respondent’s policies. She also stated that the complainant was not given preferential treatment in comparison to all of the other full-time drivers. The complainant challenged the applicability of these policies, testifying that he had not been made aware of them. He did acknowledge, however, that he had received the driver handbook during his employment. He also signed the respondent’s compensation and signing bonus policies in May 2018 when he started working for the respondent.

[39] The Board finds from a review of the evidence that the terms of the complainant’s employment were defined by the respondent’s policies. These policies do not include a term or condition of employment that would permit the complainant to unilaterally schedule his own days on and days off. The Board, therefore, concludes that the respondent did not breach the employment contract in denying the complainant’s PTA or insisting that he work on July 15, 2020.

[40] The complainant also argues that the respondent unilaterally changed his driver status from full-time to part-time. On July 15, 2020, the respondent advised the complainant that his truck would be ready to leave at 9:00 a.m. and asked him to confirm when he would be arriving for his workday. After the complainant indicated that he would not be available to work until July 18, 2020, Mr. Morrice wrote to him to outline that the respondent expected him to work full-time hours and that, if he did not do so, he could not continue as a full-time driver with benefits. Mr. Morrice communicated in the email exchange of July 15, 2020, that the complainant’s request for time off through the PTA was denied. Moreover, he advised the complainant that, based on his work refusal and unwillingness to complete his work week, his status would be changed from full-time to part-time and his medical benefits would be discontinued.

[41] Mr. Morrice testified that he was upset when he sent the emails because he had a customer’s load that needed to be delivered by the complainant. He further explained that he plans and schedules the loads for each week based on full-time drivers working five days in each week and that he did not know that the complainant had booked off time until he received the notification by email in the morning of July 15, 2020. He explained that it was his intention through the email exchange to motivate the complainant to come in to work and complete his full-time work week.

[42] After the email exchange between Mr. Morrice and the complainant on July 15, 2020, there was no further communication between them until the complainant’s letter of July 21, 2020. In particular, the complainant performed no further work for the respondent and did not seek further clarification from Mr. Morrice about his status as a full-time or part-time driver.

[43] Mr. Morrice confirmed in his testimony that, despite the statements in his emails to the complainant, he took no steps to change Mr. Lennox’s full-time status with the respondent. Specifically, he did not direct dispatch or operations to change the complainant’s status to part-time and did not inactivate his driver profile.

[44] On July 17, 2020, the respondent offered a load to the complainant with a departure on July 19, 2020. Ms. Sefton, the driver manager who had contacted the complainant about the load, testified that when she was planning the work for the week of July 19, 2020, the complainant showed on her driver board as an available driver. She stated that she asked him to take the load in accordance with her regular practice. The complainant advised her that he could not accept the load because he needed to clarify issues with Mr. Morrice. Ms. Sefton concluded that the complainant had refused the load and assigned it another driver.

[45] There is no evidence that the complainant undertook any steps to clarify the issue of his driver status with Mr. Morrice. Instead, at some time between July 15 and 21, 2020, he removed his personal belongings from his truck. Mr. Asciak testified that he observed that the personal belongings were gone when he entered the truck in the morning of July 21, 2020, and the complainant confirmed that he had removed his belongings in his letter of July 21, 2020, to Mr. Morrice.

[46] When the respondent’s statements and actions are assessed objectively, the Board finds that the respondent has not breached a term of the complainant’s employment. On July 15, 2020, Mr. Morrice denied the complainant’s PTA request and advised him that he expected him to work the rest of his week. The complainant does not have the right to have his PTA approved. According to the respondent’s policy on time-off requests, drivers are required to submit such requests to driver managers, who are then responsible for reviewing and approving them. The policy expressly states that “[a]ll requests for time off are subject to the company’s ability to continue to effectively operate.” Mr. Morrice told the complainant that, if he refused to work his full-time hours, the respondent would change his status to part-time based on this refusal and that the consequence of this status change would be a loss of his medical benefits. The respondent only provides medical benefits to full-time employees, and it was a term of the employment contract, as set out in the respondent’s policies and driver handbook, that the complainant work full-time hours in order to receive those benefits. The Board does not find that Mr. Morrice’s statements constituted a change in these terms of employment. He was simply advising the complainant that full-time work was required in order for him to keep his full-time status and benefits.

[47] The respondent never took the necessary steps to change the complainant’s status from full-time to part-time. Mr. Morrice did not direct anyone to implement this change, and, according to Ms. Sefton, as of July 17, 2020, the complainant still showed on the driver board as an available full-time driver for her to dispatch. More specifically, the respondent took no steps to change the complainant’s employment status until July 21, 2020, when Mr. Asciak discovered that the complainant’s truck had been emptied of his personal belongings. The respondent then concluded, based on the work refusals and the removal of the personal belongings, that the complainant had resigned his employment. Given this conclusion, the respondent acted on July 21, 2020, to cancel the complainant’s benefits and sought confirmation from the complainant of his resignation. It is the Board’s view that, in all these circumstances, it was reasonable for the respondent to conclude that the complainant had resigned.

[48] The Board concludes that the evidence does not demonstrate that the respondent made a substantial change to the complainant’s employment contract on or around July 15, 2020. Therefore, the complainant has not established that he was constructively dismissed in relation to the events of July 15, 2020.

2. Does the series of incidents that occurred prior to July 15, 2020, demonstrate that the respondent no longer intended to be bound by the employment contract?

[49] The complainant also argues that his resignation was caused by the respondent’s conduct during a series of incidents prior to July 15, 2020. He claims that the respondent engaged in a pattern of misconduct directed towards him that challenged, obstructed and harmed him in his work. These earlier events involve allegations that the respondent provided him with misinformation related to his loads and directed him to perform illegal or unsafe work. The respondent presented evidence that contradicted the complainant’s claims with respect to each of the identified incidents.

[50] The Board has reviewed the parties’ evidence about this series of incidents and concludes that none of the incidents are relevant to the complainant’s claim of constructive dismissal. For each incident, the parties resolved the issue at the time of the incident. The complainant accepted the resolutions and continued to work for the respondent without objection until the events of mid-July 2020. The Board does not find that these earlier conflicts set out a series of acts through which the respondent demonstrated that it no longer intended to be bound by the employment contract. Instead, these conflicts show a pattern of a difficult and contentious relationship between the complainant and his employer in which he would regularly challenge the employer’s directions.

[51] The complainant also argues that he was harassed and defamed through Mr. Morrice’s emails based on their tone and the fact that Mr. Morrice copied one of them to an outside customer. The Board accepts Mr. Morrice’s explanation that he inadvertently copied the email to the outside customer through a keyboarding error and that he did not intend to communicate with this customer about the complainant. The Board finds that the complainant’s allegations of harassment and defamation are not sufficient to demonstrate that a constructive dismissal occurred (see, for example, Bai v. Tsay Keh Dene Nation, [2019] C.L.A.D. No. 110 (QL)).

[52] The complainant has not proven that the respondent breached a term of his employment through its actions on or about July 15, 2020, or that it no longer intended to be bound by the employment contract in relation to the series of incidents that occurred on July 15, 2020, or prior to that date. The Board, therefore, concludes that the respondent did not terminate the complainant’s employment through constructive dismissal or otherwise.

IV. Conclusion

[53] For all these reasons, the Board dismisses the complaint.

____________________ Jennifer Webster Vice-Chairperson