Home Featured Funeral director, who found a new job while on layoff, did not resign and was wrongfully dismissed: Court

Funeral director, who found a new job while on layoff, did not resign and was wrongfully dismissed: Court

by HR Law Canada

The former director of a funeral home in Uxbridge, Ont., has been awarded more than $4,000 after she sued her former employer for wrongful dismissal in small claims court.

The funeral director, M.H., was laid off during the COVID-19 pandemic by Low & Low Limited. While she was laid off, she was able to find another job — news that the funeral home wrongly treated as a resignation, according to the Ontario Superior Court of Justice (Oshawa Small Claims Court).


M.H. was hired full-time as the funeral director at Low & Low in December 2018. There was no written employment contract. She started out with an hourly wage, but that was later converted into a $50,000 salaried position.

On March 20, 2020, M.H. was laid off. Both parties agreed that she asked for the layoff because she couldn’t be at work and tend to her children at the same time. The funeral home also noted that the layoff was something it eventually required because of public health and government ordinances that restricted the level of funeral services that could be provided during the pandemic.

In the following month, M.H. and her employer had several “impromptu” chats where it was generally understood that she wanted to come back but there simply wasn’t enough work to recall her. M.H. was receiving CERB, the federal government’s monthly $2,000 pandemic assistance for laid-off workers, but her entitlement was coming to an end.

Worried about her finances, M.H. accepted a full-time job at Praxair — covering a contract for a worker who was on a maternity leave.

When this came to the attention of the funeral home, it took the position she had resigned and issued a record of employment (ROE) to this effect on Nov. 4, 2020. M.H. refuted the resignation, stating that she did not quit and instead was wrongfully dismissed.

Not a resignation: Court

The court rejected the employer’s claim that M.H. had effectively resigned by taking another job, highlighting that “the Plaintiff conveyed to (the employer) that she wanted to return to work for him because the Praxair job paid significantly less, and it wasn’t a job in her chosen career as a Funeral Director.”

The court emphasized the importance of clarity and mutual understanding in employment relationships, particularly when changes in employment status occur. “If (the employer) wanted to treat this as a resignation, it was incumbent on him to seek clarity,” the decision noted, underscoring that such discussions had not occurred.

But it rejected a bid by M.H. to have the termination date set as the date of her layoff instead of Nov. 4, 2020, because she had agreed to the layoff.

“Had the Plaintiff not acquiesced to the layoff, she could have successfully asserted that March 20, 2020, was the effective date of her constructive dismissal when she was laid off against her will and her contractual rights, but this argument is not available to the Plaintiff given the circumstances of this case,” the court said. “This is not a constructive dismissal case – it is a wrongful dismissal case.”

Calculating damages

The court settled on 11 weeks’ notice, stating she was entitled to the differential between what she made at the funeral home versus her pay at Praxair. That worked out to $2,750, it said. It calculated the interest owing on that amount to $47.01 and awarded $1,250 for costs.

In terms of broader implications, the ruling stresses that the acceptance of employment during a layoff does not necessarily constitute resignation, a significant clarification given the common occurrences of layoffs and alternate employment during economic downturns.

The case serves as a critical reminder of the complexities surrounding employment terminations and the legal interpretations that can significantly impact the rights and obligations of both employers and employees.

For more information, see Hurlbut v Low & Low Limited, 2024 CanLII 28332 (ON SCSM).

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