Randy O'Donnell Plaintiff And: United Rentals of Canada, Inc. Defendant, 2018 NLSC 91

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : O'Donnell v. United Rentals of Canada, Inc. , 2018 NLSC 91 Date : April 25, 2018 Docket : 201401G8374 Between: Randy O'Donnell Plaintiff And: United Rentals of Canada, Inc. Defendant Before: Justice William H. Goodridge Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: April 18, 19 and 20, 2018

Summary: The Defendant sent a letter to the Plaintiff on July 11, 2014, to advise that his employment was terminated as of July 14, 2014. The Defendant’s Human Resources Director spoke by phone with the Plaintiff on the morning of July 14, 2014, and claims that she communicated a revocation of the termination. The Court found that the Defendant failed to revoke the termination of employment and, that the Defendant could not unilaterally revoke the termination. Appearances:

Cletus E. Flaherty Appearing on behalf of the Plaintiff David G.L. Buffett, Q.C. Appearing on behalf of the Defendant Authorities Cited: CASES CONSIDERED: Nason v. Thunder Bay Orthopaedic Inc ., 2015 ONSC 8097 ; Farah v. EODC Inc ., 2017 ONSC 3948 ; Roche v. Sameday Worldwide, 2014 NLTD(G) 26 REASONS FOR JUDGMENT Goodridge, J. : INTRODUCTION [ 1 ] This action seeks damages for wrongful dismissal. [ 2 ] The Plaintiff, age 49, worked as a shop foreman at the Defendant’s operations in Wabush, Labrador from 2005 to 2013. On July 11, 2014, the Defendant sent a letter to the Plaintiff terminating his employment.

The letter was sent under a mistaken belief that the Plaintiff had been medically cleared for work return, was aware of his work return date, and was intentionally remaining away from work. The Plaintiff received the letter on July 14, 2014, and called the Defendant to advise that he had not received notice of the work return date and that he was still medically unable to work.

The Defendant says that immediately upon receipt of this advice the termination letter was revoked. [ 3 ] The parties have asked the Court to make a preliminary determination, as a threshold issue to this wrongful dismissal action, of whether the Defendant is bound by the July 11, 2014 letter terminating the Plaintiff’s employment. BACKGROUND [ 4 ] The Plaintiff was injured on the job March 29, 2013. Approximately six weeks post injury the Plaintiff went off work and began receiving income replacement benefits from Workplace Heath Safety and Compensation Commission (WHSCC).

The Defendant retained the consulting firm Windley Ely Inc. to act as the employer representative in the management and administration of the file. Windley Ely specializes in the administration and management of workers’ compensation matters. Ms. Kirsty Ely of that firm was the contact person and she maintained communications with both WHSCC and the Plaintiff during the relevant timeframe. [ 5 ] On May 28, 2014, Ms. Ely advised the Defendant that the Plaintiff had capacity for work return with restrictions.

She requested that the Defendant outline duties the Plaintiff could perform that would not involve lifting greater than 30 pounds of weight. The Defendant prepared a plan for return-to-work within that restriction with reduced hours. The plan was submitted by Ms.

Ely to WHSCC on June 9, 2014, with a return-to-work date of June 16, 2014. [1] When the Plaintiff failed to show up for work, and failed to contact the Defendant, the termination letter was issued: “Your employment with United Rentals has been terminated as of July 14 th , 2014.” The letter explained that the dismissal was because “you have been absent from work without communicating to your supervisor for three (3) or more business days.” [ 6 ] The Plaintiff contacted the Defendant by phone on the morning of July 14, 2014 (the same day that the letter was received), and advised that he had not seen the June 9, 2014 letter, that he was not aware of the work return date, and that he was still medically unfit to work.

The Defendant says it advised the Plaintiff during the phone call that the termination letter should be disregarded. ISSUE [ 7 ] There are factual issues and a legal issue for determination. [ 8 ] The factual issues can be addressed by asking two questions: • Was the Plaintiff aware of the scheduled June 16, 2014, date for return-to-work? • Did the Defendant’s Human Resources Director Lydie Labeca communicate a revocation of the dismissal letter when she spoke to the Plaintiff on July 14, 2014? [ 9 ] The legal issue is whether the Defendant could unilaterally revoke the termination of employment.

CHRONOLOGY [ 10 ] The chronology of events provides context and is relevant to making the findings of fact:

• May 14, 2013 - Plaintiff goes off work due to a workplace injury and begins receiving workers’ compensation benefits. • March 4, 2014 - Dr. D.D.

Smith proposes a conditioning program to facilitate the Plaintiff’s return to work within six to eight weeks. • April 22, 2014 - Kim Holland of CBI Health Group enquires whether WHSCC could arrange a return-to-work plan for the Plaintiff at the Defendant’s New Brunswick operations. • April 28, 2014 - WHSCC Case Manager Shaunna Ryan speaks by telephone with the Plaintiff about a possible return-to-work plan. • April 30, 2014 - occupational rehab confirms that the Plaintiff has functional capacity for return to work at reduced hours. • May 28, 2014 - Ms.

Ely advises the Defendant that the Plaintiff has a functional capacity for return to work with restrictions, and requests an outline of duties that would not involve lifting greater than 30 pounds. • June 9, 2014 - Ms. Ely submits a return-to-work plan by fax to WHSCC with a return-to-work date of June 16, 2014. • June 12, 2014 – Ms. Ryan, Case Manager at WHSCC responsible for the file, reviews the return-to-work plan. • June 24, 2014 - Ms. Ryan advises the Plaintiff by phone that she has received a return-to-work plan from the Defendant but fails to provide him with details. • June 24, 2014 - Ms.

Ely advises the Defendant that she had just spoken with the Case Manager at WHSCC and been advised that “effective June 16, 2014, this employee is no longer entitled to any wage loss benefits as the job offered has been deemed suitable and within his current physical restrictions.” • July 11, 2014 - Defendant’s Director of Human Resources Lydie Labeca mails a letter to the Plaintiff terminating his employment. The letter states, inter alia : You have been on medical leave since May 14 th , 2013 with a confirmed return date of June 16 th , 2014.

On June 16 th , 2014, you were not present for your regular shift; Calvin Campbell has tried to contact you to get an update but you have not returned any of his phone calls to date. The fact that you have been absent from work without communicating to your supervisor for three (3) or more business days; your actions have been considered as an abandonment of your job as per our PPB 3J.026 Employee Rules & Regulations. Your employment with United Rentals has been terminated as of July 14 th , 2014. • July 14, 2014 (A.M.) - Plaintiff receives termination letter and contacts Ms.

Labeca (using the cell phone number included on the dismissal letter) to advise that he did not receive the June 9, 2014 return-to-work plan, that he was not aware of the return-to-work date, that his medical status has deteriorated, and that he is medically unfit for return-to-work. • July 14, 2014 (A.M.) - Ms. Labeca advises the Plaintiff that she would find out about his new medical status and that he did not need to worry about the termination letter. Her discovery evidence of the phone call, as adopted at trial, is as follows:

A. … I explained that … we had received from Workers’ Compensation [notice] that the claim was finalized because they had estimated that he is good to go back to work but with certain limitations … Mr. O’Donnell mentioned to me that actually he does have new medical information … and that he had provided that to Workers’ Compensation and that will change the status of his claim. So I said: “That’s great, let me find out.” Q. In this conversation did you offer Mr. O’Donnell his job back or did you say: “Don’t worry about the termination letter.” A.

I didn’t mention about his job … I just said don’t worry about the letter because, for me, it was clear that obviously he would go back on … Workers’ Compensation. • On July 14, 2014 (P.M.) - Ms. Ely emails the Defendant to advise that the Plaintiff “is back on workers’ comp as he provided medical report to his Case Manager a couple of weeks ago.” • July 15, 2014 - Defendant advises Ms.

Ely by email that the Plaintiff has not been terminated from his employment. • July 17, 2014 - Case Manager at WHSCC provides the Plaintiff with a copy of the June 9, 2014, return-to-work plan. • July 17, 2014 - WHSCC advises the Plaintiff that he should contact the Defendant directly to discuss and develop a new return-to- work plan. • July 18, 2014 - Ms.

Ely advises the Defendant that the Plaintiff provided additional medical information to WHSCC which established that the proposed return-to-work plan of June 9, 2014, was outside his functional restrictions. • July 24, 2014 - Plaintiff advises his physiotherapist Angela Fullarton that he had been terminated from employment and is uncertain of future work plans. • September 17, 2014 - Plaintiff advises his physician at the Brookside Mall Clinic that he had been terminated from employment. • October 29, 2014 - Plaintiff’s history, as reproduced in a report from Hope Counselling Services, indicates that “United Rentals chose to fire Mr.

O’Donnell.” • April 2, 2015 - WHSCC writes the Defendant requesting a new return-to-work plan to accommodate the Plaintiff’s functional restrictions. • May 2015 - Defendant’s statutory obligation to re-employ the Plaintiff expires. • June 25, 2015 - Defendant provides WHSCC with a new return-to-work plan with reduced hours and job duties to accommodate the Plaintiff’s functional restrictions. • March 2016 - Plaintiff makes a claim under his group insurance coverage, (health benefits are only available to employees of the Defendant). • September 13, 2017 - WHSCC reduces the Plaintiff’s wage loss benefits by 25 percent because of an unrelated (non-compensable) health issue.

ANALYSIS Was the Plaintiff aware of the scheduled June 16, 2014, date for return to work? [ 11 ] The Plaintiff was not aware of the scheduled June 16, 2014 date for return to work. He did not receive the June 9, 2014 letter, and he was not otherwise informed of the Defendant’s expectation that he report to work on June 16, 2014. [ 12 ] The June 9, 2014 letter outlining the return-to-work plan was received only by WHSCC. A Case Manager at WHSCC read the letter on June 12 but did not speak with the Plaintiff about the letter until 12 days later.

Even when the Case Manager telephoned the Plaintiff on June 24 she did not discuss details of the letter but instead told the Plaintiff that the proposed return-to-work plan would be reviewed by the WHSCC medical team. Nothing was said during that phone call that conveyed an obligation on the Plaintiff to report to work or an obligation to communicate with the Defendant about plans for return to work. Did the Defendant’s Human Resources Director (Lydie Labeca) communicate a revocation of the termination letter when she spoke to the Plaintiff on July 14, 2014? [ 13 ] Ms.

Labeca failed to communicate a clear revocation of the termination letter when she spoke to the Plaintiff on July 14, 2014, and she made no follow-up with the Plaintiff to communicate a revocation of the termination letter. [ 14 ] The Plaintiff’s version of the July 14, 2014 phone call is that the call ended with the termination still in effect and Ms. Labeca promising to review the new medical information and get back to him. The Plaintiff has no recall of Ms. Labeca advising him to ignore the termination letter. I accept the Plaintiff’s version of the call.

When the call ended the Plaintiff genuinely believed that his termination was still in effect. This finding is supported by the Plaintiff’s subsequent actions in reporting to his health professionals that he had been terminated and, to some extent, by Ms. Labeca’s recollection of the call. Ms.

Labeca’s recall of the exchange falls short of a clear revocation of the termination and leaves the matter in abeyance with her vague promise to “let me find out.” Telling the Plaintiff not to worry about the letter, even if I accept that the comment was made, would not be a revocation of the termination, especially in the context of the “let me find out” remark. [ 15 ] Ms. Labeca testified that she had many other issues on her mind when she received the call from the Plaintiff. She was dealing with a work-related crisis and at an airport about to board a plane.

There had been mass resignations by employees at one of the Defendant’s offices and Ms. Labeca was travelling to that office to address the problem. I accept that Ms. Labeca assumed that her words to the Plaintiff during the call conveyed a revocation of the termination. This is evident from her subsequent actions in maintaining the Plaintiff on the Defendant’s records as an employee. But I do not accept that the assumption was reasonable based on her recall of the exchange. Ms.

Labeca admitted on cross-examination that she could not be sure of exactly what was said, testifying on direct that she told the Plaintiff he was not terminated, but recanting that on cross-examination and adopting her discovery evidence. In the circumstances, I prefer the Plaintiff’s version of the phone call. Can the Defendant unilaterally revoke the termination of employment? [ 16 ] An unequivocal letter of termination, as we have here, cannot be unilaterally revoked by the Defendant (see Nason v. Thunder Bay Orthopaedic Inc. , 2015 ONSC 8097 at paras. 185 and 186 and Farah v.

EODC Inc ., 2017 ONSC 3948 , paras. 97 and 98 ). For the revocation to be effective, it must be clear and unequivocal and, in this current context, must be acknowledged and accepted by the Plaintiff. This did not occur. [ 17 ] I distinguish Roche v. Sameday Worldwide , 2014 NLTD(G) 26. That case involves similarities, but also differences, from our facts. In Roche the employer erroneously believed that its employee, Ms. Roche, had been cleared for work return and sent her a termination letter after she failed to report to work as scheduled. That is where the similarities end.

Upon discovery of the erroneous belief, Sameday issued a clear revocation of the termination in writing. The trial judge found that Ms. Roche accepted and agreed with the revocation of the termination. It was not a unilateral act by the employer but rather a revocation clearly communicated to, and accepted by, the employee. POOR COMMUNICATION [ 18 ] The absence of clear communication during the June and July 2014 period was the cause of this misunderstanding, and the Plaintiff, the Defendant, and the WHSCC all share in the blame.

The misunderstanding, and this civil action, could have been avoided by better communications. [ 19 ] The Plaintiff had moved to New Brunswick in July 2013 but failed to update his mailing address with WHSCC until sometime after July 2014. There were efforts being made during the spring of 2014 to develop a return-to-work plan, and the Plaintiff should have updated his contact address with WHSCC. [ 20 ] When the Case Manager at the WHSCC contacted the Plaintiff by phone on June 24, 2014, she failed to inform him of the details set out in the June 9, 2014 return-to-work plan.

In particular, she failed to advise the Plaintiff that the Defendant had been expecting him to report for work on June 16, 2014. [ 21 ] The June 24, 2014 email message of Ms. Ely states that the Case Manager had indicated that the return-to-work plan offered to the Plaintiff had been deemed suitable by WHSCC, but (based on Ms.

Ryan’s in-court testimony) the Case Manager communicated a different message in her conversation with the Plaintiff on that same day. [ 22 ] On June 24, 2014, the Defendant obtained the Plaintiff’s updated address but failed to send any correspondence to the Plaintiff before sending the July 11, 2014 termination letter.

[ 23 ] The Defendant assumed that the Plaintiff was aware of the scheduled return-to-work date even though the June 9, 2014 letter was only sent to the WHSCC. [ 24 ] Ms. Labeca did not follow-up with a clear written message to the Plaintiff to confirm that the termination letter was revoked. [ 25 ] The Plaintiff did not make any follow-up attempts to Ms. Labeca, despite his understanding that she would be getting back to him as well as the recommendation from WHSCC on July 17, 2014, that he should contact the Defendant directly. The Plaintiff had the personal cell number for Ms.

Labeca and could have made the follow-up call. I accept the evidence of Ms. Labeca that she received no voice messages, and no other messages, from the Plaintiff after July 14, 2014. costs [ 26 ] This hearing was for preliminary determination of a threshold issue. In the circumstances, cost shall be in the cause. _____________________________ William H. Goodridge Justice