Melanie Lamoureux v. JYSK Linen N Furniture Inc., 2015 CanLII 78257 (ON LRB)
Melanie Lamoureux, Applicant v. JYSK Linen N Furniture Inc., and Director of Employment Standards, Responding Parties
Employment Practices Branch File No: 70131786-3
BEFORE: Brian McLean, Alternate Chair
APPEARANCES: Anthony Lungu for the applicant; Ib S. Petersen and Lynne Williams for the responding party employer; no one appearing for the Director of Employment Standards
DECISION OF THE BOARD: November 20, 2015
1. This is an application for review of the decision of an Employment Standards Officer not to make an Order to Pay in favour of the applicant in respect of the termination of her employment following a pregnancy and parental leave. The applicant alleges the employer violated the obligation to reinstate her to her employment following a leave contained in s.53(1) of the Employment Standards Act, 2000, S.O. 2000, c.41, as amended (the “Act”) and that it engaged in a reprisal contrary to s.74 of the Act. The Board held a hearing over three days to receive the parties’ evidence and arguments.
2. The responding party employer is a retail store chain. Its head office is in British Columbia but it has stores, a warehouse and an office (about which more will be said below) in Ontario. It also has operations in Quebec. It employs approximately 1200 employees across Canada.
3. The applicant worked for the responding party as an English/French language translator. There is agreement that, broadly speaking, her work fell into one of three categories, although there is dispute about how much of her time was spent working in each category. These categories were: translation in support of the company’s advertising and marketing department which at the relevant time was based in British Columbia; translation of a broad range of corporate documents (for example, emails which were sent to all of the company’s stores were sent to her first for translation and then sent to all stores); and work in support of the company’s Quebec operations such as dealing with that province’s French language law’s requirements.
4. The applicant was hired in 2007. At the time of the termination of her employment she earned approximately $50,000 per year. She worked out of the company’s Mississauga office. Her direct manager was Lynne Williams, the company’s marketing director, who was based in the British Columbia office.
5. In September or October 2012 the applicant advised Ms. Williams that she was pregnant with the due date being in the spring of 2013. Ms. Williams testified that she understood the applicant would return to work following her leave. On Ms. Williams’ testimony the company considered the applicant to be a valuable and hard-working employee.
6. Nevertheless, in circumstances which were not clearly established in the evidence, prior to the applicant going on leave, the company decided to permanently fill the applicant’s position with an employee in British Columbia who would be hired for that purpose. It is this decision which resulted in the majority of the evidence led in this case.
7. Ms. Williams gave evidence about the company’s decision. It is clear that the final decision to replace the applicant was ultimately made by an individual who did not testify, the CEO of the company, Ludvig Kristjanssen. For her part in the decision Ms. Williams testified that for a long time she wanted to have the translator located in her office in Vancouver. She believed that since the translator spent so much of her time (70% in her estimation) working to translate advertising department material (such as translating catalogues, promotions and, most importantly, the company’s weekly flyer), it would be easier and more efficient to have the translator present with her. She also did not like the fact that she could not monitor Ms. Lamoureux, although she had no concerns about her performance.
8. In examination-in-chief Ms. Williams gave few, if any, particulars of the meeting or meetings where the decision was made to move the translator position. Her evidence was that it was entirely a verbal discussion and there was nothing in writing to confirm it. She testified that it was common at JYSK for these types of determinations to be made verbally.
9. On January 26, 2013, prior to Ms. Lamoureux’s going off on leave, the Company advertised for a translator position in its British Columbia office. The advertised position was for someone to replace the advertising aspects of the applicant’s job. In addition, the newly hired employee was to have skills in desktop publishing which the applicant did not have. An employee was hired before Ms. Lamoureux went on leave. Although the applicant was aware of the hiring she was not told that the new employee was her permanent replacement. The applicant believed, reasonably in my view, that the new employee was to replace her for the duration of her leave.
10. In cross-examination, Ms. Williams confirmed that the decision in which they concluded to move the position was made December 2012 as a consequence of the applicant’s advising that she was going to go on leave. She and Mr. Kristjanssen had a verbal discussion that it made best sense to move the position to British Columbia. They did not consult with human resources because, at the time, the company did not have a human resources manager, only a “support person”.
11. Ms. Williams testified that they had not moved the position before because the company “did not have the resources to hire another translator in British Columbia”. Later, in cross-examination, however, she testified that, prior to the applicant’s leave, the kind of discussions she had about moving the position was along the lines of “wouldn’t it be convenient” if we could have the translator in the British Columbia office. I took this to mean that there were no serious discussions about making the move until the time when the applicant announced her leave. Ms. Williams may have been serious about her wish for this to occur, but there was no likelihood that the move would have taken place until the applicant announced her intent to take a leave.
12. Ms. Williams testified that the decision was made in December because they then needed someone to cover the applicant’s position. Her evidence was that with the applicant going on leave it became a convenient time to move the position. There were no discussions about offering the applicant the position in British Columbia.
13. The company did not immediately advise the applicant of its decision to move her position. Ms. Williams claims that was because it hoped to find another position for her when she returned from her leave. However, I find that explanation far-fetched and disingenuous. Given the applicant’s skills, and the company’s needs in Ontario, it is far more likely that the company simply hoped that the applicant would decide to not return from her leave and to resign her employment. There is, in any event, no suggestion that the company took any steps to find the applicant another position until she contacted the company to arrange her return to work.
14. Regrettably, the company’s obfuscation of its intentions continued when the applicant sought to return from leave. The applicant called in December 2012 in order to finalize the date she would return to work. However, it appears she was not immediately called back. However, on February 6, 2013 Harjinder Chhina, a JYSK human resources department employee, emailed Ms. Williams and asked her to confirm the applicant’s return to work date. Ms. Williams forwarded Mr. Chhina’s email to the applicant saying: “Harjinder wanted to know your date of return to work. Thanks, talk soon”. This exchange is notable both because Ms. Williams did not then advise the applicant that her position had been eliminated and that Mr. Chhina did not seem to know this either.
15. Shortly after that exchange, on February 14, 2013, Ms. Williams emailed the applicant and suggested that they set up a telephone conference with Mr. Kristjanssen so that they could talk about her position. It was not until March 1, that the conversation actually took place. In that conference call the company advised the applicant that her position no longer existed in Ontario but that the company would try to find another position for her. The applicant indicated that she was “super excited” at the opportunity. There was no evidence given about the internal discussions which caused the conference call to occur.
16. There were additional telephone and email exchanges in which the company asked the applicant about her hours of work and salary expectations. She responded that she would like to work 7:30 – 4:00 as she did prior to her leave and that she would like to work full time at her pre-leave rate of pay. However, as must have been obvious to it all along, the company only had part time retail store positions available for the applicant at a much lower salary. These positions were unacceptable to the applicant (and the company acknowledged were not comparable to her pre-leave position) and accordingly the company terminated her employment by letter dated March 11, 2013.
17. In its opening statement the company put some emphasis on the fact that the Mississauga office, where the applicant worked, was winding down. When the applicant was first employed there, the office was small and housed the CEO, the Chief Financial Officer, the Human Resource Manager and the Manager in charge of real estate. However, over time all of these employees were either terminated or transferred to British Columbia.
18. By 2012, prior to the applicant’s leave, she was the only employee who worked at the Mississauga office on a full-time basis. Two regional managers had offices in the building but travelled a lot and were generally present at the office on only one day per week. The office was attached to a warehouse, and there were workers there, but it seems that they only infrequently came to the office. The applicant worked long hours and expressed concerns, shared by management, about her security working alone, especially after hours.
19. Accordingly, early in 2012 the applicant began to work from home on an informal basis. Later the arrangement was made formal and a tech employee was sent to Toronto from British Columbia to set up her home office.
20. In the end, the emphasis initially placed by the company on the “closing” of the Mississauga office was a red herring, as even the company acknowledged. The office was and is not closed. There is no reason why the applicant could not have continued to work in the Toronto area either out of the office or at home. This is not a case where the applicant’s loss of job has been occasioned by the employer’s decision to close a workplace.
21. The applicant relies on certain events which occurred after the termination of the applicant’s employment, but, in her view, are relevant to the issue before the Board. In particular, on or about June 15, 2013, the company posted a job for an “operations Coordinator/Translator” to be based, according to the job posting, in Mississauga. Ms. Williams had no direct knowledge of the job posting. However, she testified that it was a “mistake”. On her evidence, the company’s Quebec operations wanted to have a Coordinator/Translator for Quebec and the job posting should have been for a position based in Quebec.
22. The applicant led evidence about her efforts to locate another job following the termination of her employment. Those efforts were inhibited in part because during her period of unemployment she had another baby and a medical issue. She claims loss of E.I. pregnancy leave benefits which she asserts she would have received had she been reinstated after her leave. The applicant applied to numerous organizations seeking employment. However, most of the applications were in a general, cookie cutter format. There were also periods where she did not make any applications at all.
23. Section 53 and 74 of the Act state in relevant part:
53. (1) Upon the conclusion of an employee’s leave under this Part, the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.
(2) Subsection (1) does not apply if the employment of the employee is ended solely for reasons unrelated to the leave.
(3) The employer shall pay a reinstated employee at a rate that is equal to the greater of,
(a) the rate that the employee most recently earned with the employer; and
(b) the rate that the employee would be earning had he or she worked throughout the leave.
74. (1) No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do so,
(a) because the employee,
(i) asks the employer to comply with this Act and the regulations,
(viii) is or will become eligible to take a leave, intends to take a leave or takes a leave under Part XIV; or
(2) Subject to subsection 122(4), in any proceeding under this Act, the burden of proof that an employer did not contravene a provision set out in this section lies upon the employer.
24. The employer relies on s.53(2) of the Act and the Board’s caselaw upholding employer decisions regarding the elimination of positions of employees who take leaves under the Act. Typical of those cases is Ayed v. Moeller Electric Ltd. 2012 CarswellOnt 3556 where the Board stated:
38. In the context of this set of facts, and others where an employment relationship has ended, subsections 53(1), (2) and 74(1)(a)(vii) of the Act operate together to protect a returning employee’s continuity of employment from any negative effects of the leave. If the employer causes that continuity to be broken and cannot show this was solely for reasons unrelated to the leave, the employer will be found in violation of the Act if the same or comparable position is not offered.
39. These provisions do not impinge upon employers conducting their businesses in the normal course. Therefore, a returning employee cannot insist upon a former position unaffected by legitimate changes in the business operations that other employees have been expected to accept (see Lasercom Clinics International, Re,  O.E.S.A.D. No. 321 (Ont. L.R.B.), 2002 CanLII 24909 (ON LRB), 2002 CanLII 24909(June 10, 2002)) nor expect the employer to “freeze (the employee’s) duties” in perpetuity(see Ross v. Ontario New Democratic Party (1994),  O.E.S.A.D. No. 117 (Ont. Referee under Empl. Stnds. Act), cited with approval and relied upon in Stoner v. Pinnacle Freight Specialists Inc.,  O.L.R.B. Rep. 555 (Ont. L.R.B.); 2008 CanLII 40939 (ON LRB), 2008 CanLII 40939(July 28, 2008)) if the changes are dictated solely by the requirements of the business.
25. The difficulty for the employer is that the essence of the Board decisions which it relies on is that an employee who takes pregnancy or other leaves is to be treated in the same way as if the leave had not occurred. If the employee who went on leave would have been affected by employee restructuring if the employee had not taken a leave then the employee should not be shielded from those consequences because the employee took a leave.
26. Here, on the evidence, the situation is the opposite. Ms. Williams testified that she had a desire to have the translation work done out of her office in Vancouver. It was this desire that underpinned the employer’s case for a bona fide business justification for eliminating the position in Mississauga. However, in cross-examination Ms. Williams acknowledged that this “desire”, while real, had not been the subject of any serious discussion. In the end, Ms. Williams acknowledged that the move was only made because of the applicant’s pregnancy leave; on the applicant’s absence it became convenient to move the position to Vancouver. I am satisfied, and I think that it is clear, that but for the applicant’s taking a leave the move would not have been made when it was and, moreover, it is likely the position would not have been moved at all.
27. The purpose of the leave provisions of the Act is to protect employees who decide to take leaves. They are to be given a large and liberal interpretation. In my view, they ought not to be interpreted to allow employers to use the leave as an opportunity to eliminate the position of the person on the leave in circumstances like those before me. I am satisfied therefore that the employer violated the Act by transferring the position while the applicant was on leave.
28. Had there been a serious plan in place to move the position to British Columbia prior to when the applicant announced her pregnancy, the outcome may well have been different. However, there was no such plan. It was the leave which caused the employer to act.
29. In my view it was also a violation of the Act for the employer to decline to offer the moved position to her. Under the Act, the right to be offered the position was not affected because the position was in British Columbia. The employer’s “explanation” at the hearing that it did not tell the applicant about the move of her position because it did not believe she would accept the position in British Columbia was no answer to the complaint. It had no basis for coming to that conclusion. Moreover, there is no evidence that the employer actually even considered offering her the position. It was clear that the explanation offered at the hearing was an after the fact justification.
30. The applicant seeks back pay and the damages the Board normally awards in these cases. She does not seek reinstatement to her position.
31. At one point in the hearing the applicant indicated that she might seek reinstatement to her employment. However, by the end of the hearing the applicant agreed with the company that the relationship between the parties was too “poisoned” by the litigation for reinstatement to be appropriate.
32. I note that in her closing argument the applicant referred me to the recent decision in Sense Appeal Brands Inc. 2015 CanLII 49516 (ON LRB), 2015 CanLII 49516 where the Board stated:
34. There is Board jurisprudence to the effect that reinstatement is the preferable remedy in the case of reprisal dismissal contrary to the ESA – even to the exclusion of compensation, if not sought – but the latter conclusion is almost certainly in error, given the disjunctive language of ESA subsection 104(1). The rationale given for that view – that the Board has had many years of experience in granting the third of the triadic choices, namely compensation coupled with reinstatement, in remedying unfair labour practices contrary to the Labour Relations Act, 1995-, does not bear close scrutiny. In the case of labour legislation, the Board is dealing for the most part with workplaces in which the inequality of bargaining power between employer and individual employee has been modulated by worker solidarity in the form of a trade union which represents the interests of workers. Countervailing labour power buttresses a worker reinstated into his or her job in an organized workplace, and goes far in guaranteeing the efficacy of the remedy.
35. By way of contrast, in an unorganized workplace, the reinstated worker remains in the same position of vulnerability vis-à-vis the employer as before the reprisal dismissal, and is not shielded by countervailing labour power which the presence of a trade union would provide. The ongoing efficacy of the reinstatement remedy in such circumstances is questionable, at best, and ought not be necessarily considered as appropriate in all circumstances. Even where sought, the Board needs to exercise caution in granting it. The reparative benefit of reinstatement to the employee and its value as a preventative measure to ensure compliance with the ESA by other employers must be balanced against the continuing vulnerability of the reinstated employee to the overbearing power of the employer in an unorganized workplace.
36. Here, the applicant eschews any claim to reinstatement, and this wisely so given the employer’s perception and criticism of his work ethic, and assessment of his skill as a roaster to be mediocre. Rather, by way of relief for the employer’s reprisal dismissal, Mr. Tenace seeks financial compensation for the loss he incurred as a result. He itemizes that loss as three-fold: loss of income while searching for a replacement job; loss of the value of the job itself; and, emotional pain and suffering arising from the reprisal dismissal.
33. In Sense Appeal the Board, in lieu of reinstatement, granted the employee one month per year of service and characterized it as an “award of damages distinct from concept of reasonable notice for wrongful dismissal”. These damages were 8 weeks’ pay which represented 4 weeks per year of service up to the date of his termination of employment.
34. With respect, I disagree with the thrust of the Board’s decision in Sense Appeal regarding reinstatement under the Act.
35. The starting point in my disagreement with Sense Appeal arises out of the importance of a job to an employee, especially in the modern economic climate. In my view, the Supreme Court of Canada’s Statement in Machtinger v. Hoj Industries Ltd. 1992 CanLII 102 (SCC),  1 SCR 986 is more relevant today than it was when it was written nearly 25 years ago:
I turn finally to the policy considerations which impact on the issue in this appeal. Although the issue may appear to be a narrow one, it is nonetheless important because employment is of central importance to our society. As Dickson C.J. noted in Reference Re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC),  1 S.C.R. 313, at p. 368:
Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being.
I would add that not only is work fundamental to an individual’s identity, but also that the manner in which employment can be terminated is equally important.
Section 10 of the Interpretation Act, R.S.O. 1980, c. 210, provides that every Act “shall be deemed to be remedial” and directs that every Act shall “receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit”. The objective of the Act is to protect the interests of employees by requiring employers to comply with certain minimum standards, including minimum periods of notice of termination. To quote Conant Co. Ct. J. in Pickup, supra, at p. 274, “the general intention of this legislation [i.e. the Act] is the protection of employees, and to that end it institutes reasonable, fair and uniform minimum standards.” The harm which the Act seeks to remedy is that individual employees, and in particular non-unionized employees, are often in an unequal bargaining position in relation to their employers. As stated by Swinton, supra, at p. 363:
… the terms of the employment contract rarely result from an exercise of free bargaining power in the way that the paradigm commercial exchange between two traders does. Individual employees on the whole lack both the bargaining power and the information necessary to achieve more favourable contract provisions than those offered by the employer, particularly with regard to tenure.
Accordingly, an interpretation of the Act which encourages employers to comply with the minimum requirements of the Act, and so extends its protections to as many employees as possible, is to be favoured over one that does not.
36. On that basis alone reinstatement with payment of lost compensation is the preferred remedy. It places the employee in the same position she/he would be in had the violation of the Act not occurred and restores the dignity and self-worth of the employee by returning her/him to active employment.
37. If reinstatement is not a readily available remedy the danger is that the other remedies issued by the Board become, in effect, a licence for the employer to act contrary to employment standards legislation. Again the Sense Appeal decision is illustrative of the problem. In that case, for the price of $8000, an employer was able to rid itself of an employee who was aware of his rights and was brave enough to try to enforce them. The Board’s decision can hardly lessen the effect of the company’s message to its other employees about what happens to those who seek to enforce their statutory rights. A strong statement in favour of reinstatement to employment and the order of an employee rights posting in the workplace would have had precisely the opposite effect.
38. The Board, in Sense Appeal and other cases, has said that there should be reluctance to reinstate non-union employees to employment because the employee “remains in the same position of vulnerability vis a vis the employer as before the reprisal dismissal”. There can be no doubt that is true. All employees (especially non-union ones) are vulnerable to the power of their employer. That is the reason employment standards and other protective legislation is enacted. On the other hand, an employee who is without a job (as a result of the employer’s alleged acts) is no longer in a position of vulnerability vis a vis their employer. They are, however, in a position of vulnerability to unemployment, homelessness and poverty.
39. There is simply no evidence for one to conclude that an employee is somehow better off by not being reinstated, as the Sense Appeal decision suggests. Even if terminated the day after reinstatement, the employee will still likely have a claim for the same kind of damages that the Board currently awards in lieu of reinstatement. Of course, the employee has more than that. The employee can simply file another complaint. The reality is that a reinstated employee is in less of a position of a vulnerability than they were prior to the initial dismissal because the finding of a violation will influence how the Board views the subsequent treatment of the employee. If the employee suffers at the hand of the employer following reinstatement the employee can simply make another complaint to the Employment Standards Branch of the Ministry of Labour for reprisal.
40. Further, the Board has experience in crafting remedies that are designed to protect potentially vulnerable employees following reinstatement. It is unnecessary to determine (or limit) those here. All remedial orders can present problems (including, for example, in collecting monetary awards) but the Board always attempts to limit those problems so that statutory rights are as meaningful as possible.
41. Apart from this, in my view, over-emphasis on the potential negative consequences of reinstatement, there is a failure to adequately taking into account the positive effects of reinstatement. In this regard, I have already addressed the value of a job to employees and the fact that reinstatement sends the message in the workplace that employees can exercise rights without excess fear of retribution by the employer. There is more. Reinstatement allows an employee who no longer wishes to work for the employer to attempt to find a job while in possession of a job. This may ease the transition to new employment, without any need to explain to prospective employers why they are unemployed. Finally, in the real world, the mere possibility of reinstatement may positively affect the way in which parties attempt to resolve their disputes. The possibility of reinstatement is good for employees. The message sent by Sense Appeal that the Board is unlikely ever to reinstate an employee may well be bad for employees.
42. There is also something sadly ironic about the Sense Appeal’s substitution of damages (calculated as an equivalent to a months’ pay per year of service) for reinstatement. The irony is that if the employee were to be reinstated to his/her employment and then dismissed even the day after the reinstatement, the employee may have a claim for the same or more than the Board’s usual remedy for “loss of job”. That is because the Courts frequently apply a rule of thumb of one month per year of service in wrongful dismissal actions. (Although I note that wrongful dismissal expert Barry Fisher in his paper “Measuring the Rule of Thumb in Wrongful Dismissal Cases 31 C.C.E.L. 311 indicates that employees with less than 11 years’ service generally receive more than one month per year of service in Court actions while those with more than 11 years services receive less). Moreover, unlike the approach adopted in the Sense Appeal decision, the notice would be calculated taking into consideration, as service, the period between the initial termination and reinstatement.
43. This is not to say that reinstatement is automatically the appropriate remedy in every case. There may well be circumstances where reinstatement makes no sense. However, those circumstances should be very limited, in recognition that the decision not to reinstate is a deprivation of an important statutory right which undermines the protection of those rights across the whole workforce. As the Board stated in Marquest Asset Management Inc. (June 17, 2010) reinstatement with payment of all lost wages is the “presumptive remedy”, one that is specifically contemplated by s.104(c) of the Act. The purpose of the leave provisions in the Act is to ensure employees can take a leave without losing their job. How can the primary remedy in service of that purpose be anything but ensuring they can take a leave without losing their job?
44. In the case before me, I fear that the applicant may have dropped any claim for reinstatement (even though she remains unemployed) because of the release of Sense Appeal just prior to closing argument before me. If so, that is unfortunate, since this was an ideal occasion for reinstatement. The applicant worked from home and had limited contact with the managers that were involved in the decision that affected her and who, in any event, worked in British Columbia. I reject the claim that I should be swayed by the fact the litigation “poisoned” the relationship between the employee and the employer when that litigation was only necessitated by the company’s violation of the Act. Finally, and to be fair, the company considered the applicant a good worker and on the whole seems to treat its employees fairly and I would have expected it to fully respect any reinstatement order even though it may disagree with it.
45. Nevertheless, for the applicant’s own reasons she has chosen not to seek reinstatement. While this was not, strictly speaking, a failure to mitigate her damages, (since the employer made no offer of reinstatement) the Board must recognize that the reason the applicant no longer has a job, is in part due to her decision not to seek reinstatement. But for that decision she would have a job at no loss of pay with compensation for the damages she suffered as a result of the breach of the Act. Accordingly, I reduce those damages from the normal one month per year of service to two weeks for each year of service.
46. I do not accept that the applicant has generally otherwise failed to mitigate her damages. While there is no doubt her job search efforts could have been more forceful, they were reasonable in all of the circumstances. That being said, there was a period where the applicant appeared to stop searching for another job. I am satisfied that the employee failed to mitigate for one month of that period.
47. To be clear, I order the employer to compensate the applicant for all wages lost from the date her employment was terminated until the date of the last hearing date when she advised that she was not seeking reinstatement. I include in ‘wages” lost, compensation for Employment Insurance benefits for the applicant’s second pregnancy which the applicant would have received had the employer reinstated her to her leave in accordance with the Act. The total amount of compensation for lost wages and lost Employment Insurance benefits is to be reduced by one month’s pay for failure to mitigate as discussed above.
48. Finally, the Board awards the applicant $5000.00 as compensation for emotional distress. That distress was enhanced by the way in which the employer did not inform the applicant that her job had been eliminated when she sought to return to work. Instead, the employer effectively gave her the run around while it “attempted” to find her something else which it must have known at the time was not in any sense comparable work. This conduct exacerbated the harm caused to the applicant.
49. I am seized if there are difficulties calculating damages or otherwise implementing this decision.