A farm manager whose employment was terminated after he was sentenced to an 18-month incarceration for a criminal offense is not entitled to termination pay, the Ontario Labour Relations Board has ruled.
The manager, AW, applied for a review of an Employment Standards Officer’s decision not to issue an Order to Pay termination pay.
AW, who began his tenure as a seasonal employee in May 2011 and was promoted to farm manager in May 2020 at J. Dowswell Farms Ltd., was terminated from his position on Jan. 28, 2023, after informing his employer of his need to serve a prison sentence.
The employer cited abandonment of employment as the reason for termination, issuing a Record of Employment (ROE) two days later.
The heart of the dispute lay in the manager’s absence from work due to his incarceration, starting Jan. 27, 2023, until his release on bail on March 13, 2023. Throughout this period, communication between the manager’s sister and the employer did not result in a formal request for a leave of absence, a point that would become pivotal in the board’s decision.
The manager’s argument hinged on the assertion that his employer, fully aware of his legal troubles from the outset, had unjustly terminated his employment without providing the requisite notice or pay in lieu thereof, as mandated by Ontario’s Employment Standards Act, 2000.
Conversely, the employer defended its decision on the grounds of wilful misconduct leading to incarceration and the resulting impossibility of fulfilling employment duties, thereby invoking the doctrine of frustration of employment.
It also noted that, but for his incarceration, AW would have been expected to work through the period of his incarceration — Jan. 27, 2023, to March 13, 2023.
“While there was work for the Employee during the period of his incarceration, the critical period in the Employer’s operation was the planting season which started in April. On or about February 22, 2023, the Employer hired a replacement employee in anticipation of the planting season,” the Board said.
At the time that it terminated AW’s employment and at the time that it hired his replacement, the information it had from his sister was that he was sentenced to 18 months incarceration and that he could be released “on parole” in about six months, the board said.
“Either of these timeframes was problematic considering that the planting season was 2 months away at the time of the Employee’s incarceration,” it said.
The board concluded that the manager’s incarceration rendered his employment duties impossible to perform, particularly given the physical presence required at the workplace and the critical timing of the agricultural season.
“There was, at the time of termination, no reasonable expectation that the Employee would be able to fulfil his employment obligations in the foreseeable future and certainly not before the start of the critical planting season in April, 2023,” the Board said.
Ultimately, the board dismissed the application for review, ruling that the manager’s employment was indeed impossible to perform at the time of termination, thus exempting the employer from the obligation to provide notice or termination pay under the Employment Standards Act.
For more information, see Adam West v J. Dowswell Farms Ltd., 2024 CanLII 3332 (ON LRB).
