A nasty family squabble at a Nova Scotia plumbing company, peppered with colourful language and a physical altercation, led to a claim for constructive dismissal.
But while the family relationship between one son — and his brother and father — was “volatile and fraught” the Nova Scotia Labour Board ruled the worker quit and was not constructively dismissed.
Background
SP was the vice-president of sales for “PS,” a plumbing wholesale company. He was the son of the owner, KP. While there was some ambiguity about his start date, there is no dispute that his last day on the job was Sept. 29, 2021.
There was an email exchange on Sept. 29, 2021, between the father and son. The board’s conclusion substantially arose out of the exchange, so it is worth reproducing it in full. (See bottom of the article, as it puts everything in context.)
The board noted that there was no evidence that SP worked for the company after Sept. 29, 2021, or that any additional discussions took place with KP regarding SP’s employment.
Fight between brothers
In support of his allegation that he was constructively dismissed, SP provided evidence of messages between him and his brother KPJ. They described a physical fight that took place between them.
They describe SP pushing KPJ to the ground and kicking him in the head. In the messages, KPJ speaks disparagingly to SP and uses disrespectful language.
A police report was provided by SP dated March 8, 2020. The officer’s report stated it was “common assault between brothers over the family business.” No charges were laid.
There was no evidence that KPJ was employed at PS at the time of the physical fight. The company provided evidence that KPJ began work in August 2021, at least 17 months after the altercation.
Constructive dismissal
SP said the employment environment at the company had “degraded” to the point where it was “no longer safe or feasible” for him to remain employed for three reasons:
- the work culture was “nepotism fueled” and a threat to his physical and mental health because working with his brother KPJ was a threat to his wellbeing. He refers to a medical diagnosis that KPJ has, but no evidence of the diagnosis was provided, and neither was any evidence offered to substantiate an associated threat to SP. He refers to the email messages and police report regarding physical conflict between he and his brother from March, 2020 as supporting evidence of the problematic work culture,
- a former employee LM (whose email to KP was the springboard for the Sept. 29, 2021, email exchange between SP and KP) was hired on recommendation from KPJ and was “a detriment to the company from the beginning.” No supporting evidence of this was provided. The email exchange on Sept. 29 and 30, 2021, confirms that this employee was no longer working with PS at the time of SP’s departure
- KP made “defamatory statements and sent libelous emails” to SP’s former coworkers and clients following his departure from PS. No supporting evidence of this was provided.
SP denied he gave a formal resignation at any point, and described it as a “forced resignation” in his written submissions to the board. He sought common law damages of at least 12 months in addition to unspecified bad-faith damages for the manner of his termination.
The employer said SP resigned. Alternatively, it argued the language used in SP’s email messages to KP was sufficiently egregious to justify termination without the use of progressive discipline.
Two-part resignation test
The employer cited the two-part test for resignation — that the employee must utter words or make a statement to the effect of “I quit”; and take action which shows the employee is carrying out the intention to quit.
It pointed to the email on Sept. 29, 2021, which said “I’m done” and “Find someone else to give the business to. We are selling our house and moving away from you and your bullshit.” It also cited the “Go fuck yourself” and “Go fuck yourself and have a nice day!” as sufficient to establish the first part.
For the second part, it noted that SP said “I did not say I was resigning” but nor did he he take any action to return to work or repair the relationship after the email exchange.
Alternatively, it said SP’s language was “extremely violent and aggressive” throughout the exchange with KP despite being asked to stop. It constituted just cause, it said.
The ruling
The board accepted that the test to assess resignation was the two-part one put forward by the employer.
It pointed to numerous quotes from the emails, including “That’s the end of it,” “I’m done, had enough of this abuse,” and “I will be contacting the sales managers and letting them know I am resigning and why.”
While it was noteworthy that SP said he was not intending to resign, it pointed out that comment was made in the context of requesting a severance package, not in contemplation of remaining employed.
“The Board concludes that (SP) enacted his intention to resign from (PS) because (SP) did not return to work,” it said. “There is no evidence that he expressed regret or returned to (KP) with a change of heart about his desire to finish working with (the company).”
It also noted that KP did not reach out either to try and repair the employment and business relationship, which it called “unfortunate and does not reflect best practice.”
But the onus was on SP to prove he had been constructively dismissed from his job. The only evidence SP had of an unsafe workplace was the fight between him and his brother 17 months before KPJ joined the company.
While the family relationship was “volatile and fraught,” the board said the evidence did not demonstrate that (PS) created an unsafe workplace to the extent SP could no longer work there.
“The evidence cuts both ways for the parties and the Board finds that (SP) played an active role in both the physical and verbal aggressiveness with his brother and his father,” it said.
There was no constructive dismissal in this case, it ruled.
No just cause
It’s worth noting that the board said, had SP not resigned, that the employer would not have had cause to fire him.
“While the email exchange on September 29 and 30, 2021, falls far below a best practice for workplace communication, it is consistent with all of the communications between the family members that are in evidence before the Board,” it said. “In the context of this workplace and these relationships, they are not sufficient to justify a conclusion that they amount to misconduct, disobedience or neglect of duty.”
But since it ruled he had resigned, that point was moot.
For more information, see Partington v Ken Partington Sales Limited (Partington Sales Ltd.), 2023 NSLB 18 (CanLII)
The email exchanges
Warning: Some readers may find the language in the email exchanges offensive.
September 28, 2021 8:36pm
From LM
To KP
Hey (KP)
Tried to call, but cell service on “da Rock” sucks 🙂
I had been in touch with BB and MD about the Stainless plex, neither seemed interested, but I was at both places today and mentioned to contact you about it. You may want to follow up.
RB at Port au Port is definitely interested if “the price is right.”
I am travelling Gander to St. John’s over the next couple of days, I will pass along anything that I hear or any contacts that are new/ different.
Also, before I forget, I had spoken to SB in Barrington Passage as well as MW about pex again in July. BARRINGTON did a HUGE reno, Steve was talking about bringing it in, but he is up to his eyeballs, also probably worth follow ups from Steve P (since he knows all of the selling points being far more experienced in fittings than I could ever hope to be). Their renos are almost done, so I would say strike while the iron is hot.
T in Yarmouth did not seem interested at all, but the Kent might be a good market in Yarmouth.
I will (barring weather delays) be back in NS on Tuesday, I will have cash and the iPad (sorry, I literally forgot about it) for you if you are free for lunch Weds-Fri.
Hope you are all well, safe and selling like hotcakes!!!
-L
September 29, 2021 3:06am
From KP
To LM
CC SP
LM… Thanks for doing that. I did not realize you were in NL. I have passed this info on to Steve as he is assuming the task of working the major accounts with SS PEX. And Kendall will be visiting the smaller retailers like Kent, Home Hardware, Timbrmart, etc. I will need you to visit a Kent store with Kendall and I to explain the routine for Plumbeeze and also what we have for bin tags at the office, how to replenish, etc. Definitely we can do lunch later next week and tie up loose ends. The car, insurance, office keys, business cards for Architects and Engineers, etc.
Stay safe, Ken
September 29, 2021 10:12am
From SP
To KP
Sorry, but I don’t give a shit about what she has to say, do not copy me on anything that she is says [sic]. I will have nothing to do with her. I’m about three words away from looking for a new job with another agency.
Sp
September 29, 2021 10:52am
From KP
To SP
Get that chip off your shoulder. I was only passing on the info in case you found something of value. See you at two. She does not want anything to do with you, either. Ken
September 29, 2021 11:14am
From SP
To KP
There’s no chip on my shoulder, just common sense. She caused me more aggravation, which you are ignorant to.
And still no apology. Don’t you dare take that fucking cunt’s side!!
That’s the end of it!!
September 29, 2021 11:40 am
From KP
To SP
What an immature response. Drop that language. No sides here. I have unfinished business with her which I will handle. Who are you expecting an apology from? Not me I hope. Ken.
September 29 11:42am
From SP
To KP
I’m done, Had enough of this abuse, find someone else to give the business to [sic]. We are selling our house and moving away from you and your bullshit!!
September 29, 2021 11:46am
From SP
To KP
More insults. I will be contacting all the sales managers and letting them know I am resigning and why!
September 29, 2021 11:51
From KP
To SP
that’s what I get for all we have done for you [sic]. Is this a resignation? If so, then say so, I will need to sell; the trailer and the jeep [sic]. Good luck with this move. We will manage. Ken
September 29, 2021 11:56am
From KP
To SP
If you dare do that you are trying to ruin the rest of my and your mother’s life. Think twice about that. K
September 29, 2021 12:17pm
From SP
To KP
You will no longer try to manipulate us. My family doesn’t even consider you family and cringe when you do visit [sic].
I don’t give a fuck what you say, This is not a one-way street, and I have given back way more for what you have done me [sic]. My anger will be gone with you out of our lives. Go fuck yourself And have a nice Day [sic]!
September 29, 2021 12:37pm
From KP
To SP
Resignation accepted, Same to you [sic].
I need your office keys, your Jeep car and keys, any office equipment you have at home that we paid for, your cell phone, leave the trainer in the driveway but I will need the keys or give me three grand and you can keep it. Dad
Sorry if you turned the girls against us.
September 29, 2021 7:20pm
From SP
To KP
It’s just like you to blame someone else for your actions and not take the responsibility. The girls have there own mind it is you absent behaviour and no communication that make them feel that way [sic]. You will have to prepare a severance package as there government signed documents stating I was to inherit the company and didn’t pay into EI benefit [sic].
And I did not say I was resigning. It’s all documented. The truth will come out. Good luck.
S.
September 29, 2021 7:43pm
From KP
To SP
Stephen…. Too late. I have saved all your emails. You resigned and disowned us. All the principals have been advised that you are no longer with the Company. You resigned with no notice. Your only severance will be whatever Sherry says you are owed in vacation pay. There will be no paycheques for October. You disgust me. You will not get the Company because your latest Emails will stand up in court [sic]. You better get that house on the market very quickly. I expect the other items to be returned as requested. Find a new life or win the lotto. Mom and Dad Passé.
September 30, 2021 8:57am
From SP
To KP
Oh we will see about that?
I’ve disowned you along time ago everything is documented. Better lawyer up You just made this get ugly.
Sp
