Grocery worker "went to the mat" over wrong issue

Ontario court says manager was not within his rights to refuse employer's request
|employmentlawtoday.com

The Ontario Court of Appeal has rejected an appeal by a grocery store worker who said his employer attempted to force him to work unpaid hours and delayed payment of his disability claim.

Cataldo Vanelli spent most of his working life in the grocery business. In 1974 he began his career as a grocery clerk, and he worked his way up to produce manager. In 1998 there was a change in ownership, and Vanelli became an employee of Sobeys.

In 2001, there was another ownership change and a numbered company took ownership of the store Vanelli worked at. The new owners confirmed in writing to Vanelli that his position and seniority would remain the same and his pay would remain at $21.65 per hour.

“This was carefully spelled out in a letter dated March 14, 2001, and agreed to in writing by Mr. Vanelli,” said the trial court judge. “All seemed well. Most of Sobeys’ employees remained at the store and life went on.”

As produce manager, Vanelli was responsible for the produce department. He ordered produce, supervised sales, manpower, scheduling, inventory and dealt with employee training and health and safety issues.

In the spring of 2001 he had one full-time subordinate and 12 to 16 part-time clerks in his department. Vanelli was able to set his own schedule and enjoyed a significant degree of autonomy, the lower court said. He also supplemented his base income by voluntarily working for a premium on Sundays. This gave him additional annual compensation of about $7,000.

In July of 2001 the new owner hired an assistant for Vanelli in the produce department. In doing so, the new owner specifically said to Vanelli: “You’ve got nothing to worry about. He’s not here to take your job. You are the boss. He is here to do what you direct him to do.”

But Vanelli did not believe or accept those assurances. The lower court said he remained convinced the new employee was “waiting in the wings” and had been hired to replace him.

Trouble began brewing on Aug. 10, 2001, when the owner approached Vanelli and asked him to rotate with all of the other managers in closing the store one night a week and one weekend per month.

“Vanelli’s response was adamant. He would not even consider such a proposal,” the lower court said. “He wouldn’t even try it out. In his words, ‘That was never part of my job description.’ This was a rather rigid position for a department manager to take, particularly in light of the fact that the same request had been made of all of the other managers.”

None of the other managers objected, but Vanelli drew a line in the sand by stating “I have no intention of closing the store.”

The owner was surprised by the response from an employee who had, in the past, voluntarily come in to work on his days off. He tried to assure Vanelli, asking him to give it a try. He even offered to let Vanelli choose the timing of when he would perform the closing shifts.

Debate continued through the summer months. On Aug. 25, he met with the owner and the customer service manager and again repeated his refusal to accept responsibility for closing the store one night a week and one weekend a month.

On Aug. 29, following a disagreement with the owner, Vanelli went to a walk-in clinic and obtained a one-page medical certificate stating he would be unable to perform his normal duties “due to medical reasons.”

The next week he applied for short-term disability benefits and arranged for the same physician at the clinic to complete his application to Manulife. The doctor also gave Vanelli a note stating he was under his care and would be reassessed again in late September.

Manulife initially denied the claim in early October. Up until that time, Vanelli had been receiving his full pay by way of a 66.7 per cent payment from the insurance carrier and a 33.3 per cent top-up from his employer. When the insurer denied the claim, the employer’s top-up payments stopped.

On Oct. 31, Vanelli’s lawyer wrote to the grocery store’s owner alleging he had been “attempting to compel Mr. Vanelli to resign from his employment.” The lawyer felt the store had terminated the employment relationship by providing a payment of accrued vacation period. The letter concluded by stating if he did not receive a satisfactory response within five days, he would advise his client that the store had repudiated the employment contract and wrongfully dismissed Vanelli.

Later in November, Manulife changed its position regarding eligibility for short-term disability and Vanelli was paid all of his short-term disability payments and top ups, albeit in a delayed fashion. He received his complete wages for the six-month period from Aug. 29, 2001, to March 6, 2002, that he was off work.

He never applied for long-term disability benefits because he didn’t think he would qualify. He admitted to feeling better and stated that he could have gone back, but did not. He remained angry and depressed.

On March 13, 2002, the owner wrote Vanelli and indicated he would like him to return to work as soon as possible. He offered to meet with him to discuss matters either at the store or at a coffee shop. By April 2, the owner had not received a response. He wrote again stating that if Vanelli didn’t contact him in the next two weeks, his failure to contact would be interpreted as a resignation.

Vanelli never returned to work for his previous employer, and launched a lawsuit. The issue before the lower court was whether the store’s actions amounted to a repudiation of the employment contract.

The court rejected that argument. It said Vanelli developed a theory in his own mind that the store was trying to drive him out of his job. It said there was no evidence of a concerted campaign by his employer to encourage him to quit. In fact, the court said the owners showed flexibility and accommodation by offering to let Vanelli choose the days when he would close the store. At no time was he singled out and treated differently than other managers.

“While there is no doubt that Mr. Vanelli felt strongly about this issue, I specifically find that he was not within his rights to refuse the request made of him by (the store) and should have at very least ‘tried it out,’” the court said. “He chose the store closure issue as his battleground with his employer. This was an extremely unfortunate choice for this long-service senior employee. Rigidity has a cost … in this instance Mr. Vanelli went to the mat for an issue which, while it may have been important to him, was not fundamental to the employment relationship.”

The lower court dismissed the lawsuit. Vanelli appealed to the Ontario Court of Appeal.

The Court of Appeal rejected Vanelli’s claim. It said the employer was not asking him to work unpaid time by asking him to close the store.

It also rejected the notion that the employer had taken too long to pay the disability benefits.

“The applicable benefits insurer denied (his) benefits claim for some time and subsequently accepted it,” the Court of Appeal said.

As soon as Manulife approved the claim, the employer instructed its staff to promptly resume payment of the employer’s share of the benefits.

“The evidence at trial indicated that the employer’s subsequent delay in paying its share of the benefits was attributable to an administrative error on the part of one of its benefits staff, who subsequently left the employ of the employer,” the Court of Appeal said.

For more information see:

Vanelli v. Sobeys Capital Inc.

, 2005 CarswellOnt 624 (Ont. C.A.)

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