Truck driver wrongfully terminated, employee handbook non-binding

In Stonham v Recycling Worx Inc, 2023 ABKB 629 Justice Marion addressed a wrongful termination action made by a commercial truck driver against his former employer operating a business in recycling.

In Stonham v Recycling Worx Inc, 2023 ABKB 629 Justice Marion addressed a wrongful termination action made by a commercial truck driver against his former employer operating a business in recycling.  

Mr. Stonham drove commercial trucks for Recycling Worx Inc. In October 2019, he suffered a workplace injury after he fell off a truck trying to remove a tarp. He lost consciousness and broke his collarbone. When Mr. Stonham returned to work the employer had him on modified duties which he found menial and tedious. During this time, Mr. Stonham faced bullying and harassment from RWI employees. Mr. Stonham made a workplace harassment and OHS complaint. Then he went on a medical leave as recommended by a registered psychologist.

Mr. Stonham was expected to be ready to return to his full-time pre-accident duties by September 15, 2020, and he was pushing RWI to let him start driving again with a helper while he fully recovered. RWI refused that request.

In September 2020, neither party confirmed, one way or the other, whether Stonham was actually ready to return to his pre-accident duties. Not knowing what the plan was, Mr. Stonham did not attend for work on September 15-17, 2020.

Through his lawyer, Mr. Stonham wrote to RWI to request that Mr. Stonham be reinstated to his position.

In response, RWI responded to Mr. Stonham and his lawyer, which stated as follows:

“This is to confirm Recycling Worx Inc acceptance of your resignation from your employment with our company effective end of day September 17, 2020.

Due to the failure to report for work on September 15, 2020 and as per the Worx Group of Companies Employee Handbook, Page 12, which states “Employees are considered to have resigned from the company if they are absent for more than three consecutive working days without contacting the office”, we consider this your resignation and accept it at this time. The Employee Handbook was signed by you, Allan Stonham, on October 2, 2019.

Find enclosed copy of your Record of Employment.”

Mr. Stonham filed a claim alleging wrongful termination. RWI filed a response stating that Mr. Stonham resigned or alternatively abandoned his employment.

To support its position RWI pointed out an employee handbook with Mr. Stonham had signed upon being hired which included a clause regarding resignation.

Justice Marion found that the employee handbook resignation clause was not binding on Mr. Stonham for at least two main reasons

1. The resignation clause was ambiguous

2. The resignation clause purported to fundamentally change Mr. Stonham’s common law rights in respect of the employment relationship

Justice Marion further pointed out that there was no fresh consideration given to Mr. Stonham when he reviewed and signed the handbook.

Justice Marion restated employment law principals noting:

“Given the inequality of bargaining power, employer policies imposed on employees should be construed strictly to determine if they actually apply to situation at hand and any ambiguity should be resolved in favour of the employee.”

In siding with Mr. Stonham, the court found that:

“Stonham’s absences (or other conduct) was not misconduct of such a nature that struck at the heart of or was a repudiation of the employment relationship…I find that RWI’s response to Stonham’s absence on September 15-17, 2020 was not proportionate. Further, it was not compliant with RWI’s own “Discipline Policy and Procedure” in its Handbook which provided for progressive discipline including verbal and written warnings.

While Stonham’s approach and lack of communication was questionable, a reasonable employer in RWI’s circumstances would not have attempted to rely on the Resignation Clause to justify “closing the file” on its employee – it would have made an inquiry about Stonham’s recovery to determine whether he was ready for pre-accident duties and, if so, to advise him of his required date of return to work. And, a reasonable response would not include sending the Resignation Acceptance Letter at the very moment the employee expressed readiness and ability to return to their pre-accident duties.”

Notwithstanding that Justice Marion found that Mr. Stonham was wrongfully terminated, the damages awarded did not necessarily reflect an enhanced notice period. Mr. Stonham was 54 at the time of his termination and had been with the company for 3 years. As a part of his action, Mr. Stonham sought 6 months pay in lieu of notice. RWI argued that if Mr. Stonham was entitled to damages based on a 2-3 month notice period. Justice Marion ordered termination pay to be $11,250 representing 2.5 months’ pay.