“What you say in advertising is more important than how you say it”
– David Ogilvy
After 11 years as the sole service manager for Lee Munro Chevrolet in Paris, Ontario, Franklyn Patterson apparently had had enough of his job. The feeling must have been mutual.
The day after a long shift, Patterson’s wife contacted the company stating that her husband was not well and would not be at work for the next few days. However, when Patterson awoke the day after to find his own job posted in the classified section of the local news, he was perplexed. He hadn’t been fired and he hadn’t resigned.
Sometimes a company’s actions create a situation where an employee believes that he or she can no longer continue in the job. If that belief is reasonable, then the employee can treat himself as having been fired. And in Canadian employment law, when you are fired you are entitled to severance.
Believing that the posting of his job in the local news made it impossible for him to continue with his work, Patterson sued the company, arguing that the posting should be equated with his dismissal. Interestingly, an Ontario judge recently agreed.
According to Lee Munro, the principal of the dealership, Patterson’s claim for sick leave was nothing but a sham. He believed that Patterson’s absence from work was a pre-meditated scheme for making a claim under the company’s new disability plan. Having heard that Patterson’s wife was receiving long-term disability payments, he was certain that Patterson’s plan was to do the same. As Munro explained, once Patterson left work, he didn’t think he would return, so posting an advertisement for his job was a logical step.
Although the court found that Munro’s belief in Patterson’s plan was reasonable and honestly held, it was not based on evidence – but rather on speculation and gossip. In any event, based on the medical evidence, Patterson was genuinely ill and unable to work at that time.
In an employment lawsuit, honest intentions don’t always matter. Workplace rights are assessed based on what was a reasonable course of action. In this case, the court ruled that the “inescapable conclusion” was that placing the advertisement for Patterson’s job in the news without providing any explanation or even informing him that it would be published was tantamount to his dismissal. Patterson was awarded nearly a year’s salary and his legal costs.
Whether you are an employer or an employee, you can glean valuable lessons from this case:
– Silence is not always golden. While putting succession plans in place may not be an unreasonable course of action, there may be a duty to inform employees why a job is being posted and what it means to their own employment.
– Claims for sick leave, however dubious, should be handled with caution. More often than not, a doctor’s note is evidence of a genuine illness.
Don’t rely on water-cooler gossip in asserting workplace rights.
Daniel A. Lublin is an employment lawyer focusing on the law of dismissal. He can be reached at dan@toronto-employmentlawyer.com
