The Hudson's Bay Company sign in downtown Toronto, Wednesday July 16, 2008. THE CANADIAN PRESS/Adrian Wyld

‘It felt like they were forcing me to quit’: HBC worker files wrongful dismissal suit

Yvette Mitchell is seeking damages for lost benefits and pension entitlements and lost pay

On a spring day 21 years ago, Yvette Mitchell walked into Hudson’s Bay Co.’s flagship department store in downtown Toronto with a resume.

She loved fashion and wanted to work on the third floor — the epicentre of women’s designer clothing in Canada.

She was hired on the spot.

“I was so excited,” Mitchell said in an interview. “I had a great interest in fashion and thought where else to go than the Bay.”

Two decades later, the retail veteran said she was in shock when the company unilaterally altered the terms of her employment, changing her permanent part-time status to that of an “auxiliary associate.”

Mitchell, who had been on a temporary layoff since April 2020, last month received a letter from HBC outlining the status change.

It not only meant Mitchell would go from a guaranteed 30-hour work week to an arbitrary range of zero to 27 hours a week, she would also lose her health and dental benefits, five-weeks vacation and potentially her pension entitlements going forward, she said.

“I felt like they were forcing me to quit … to hijack my severance pay,” Mitchell said. “I felt really hopeless and lost.”

She took her case to a lawyer, who has filed a statement of claim in the Ontario Superior Court of Justice alleging wrongful dismissal.

She is seeking damages for her lost benefits and pension entitlements, accrued vacation pay and lost salary and commissions, it said.

It’s also seeking damages for the bad faith manner of termination and punitive damages.

The claim said Mitchell was sent home last March at the outset of the COVID-19 pandemic and in April was temporarily laid off due to a shortage of work amid ongoing store closures. Last month, she received a letter informing her that her position had changed.

The claim says the retailer engaged in “constructive termination,” arguing that by unilaterally changing the terms of her employment during a temporary layoff, the company has not provided Mitchell with proper notice or severance pay.

The claims made in the filings have not been proven in court.

The company said in a statement that as it is an active litigation “it would be inappropriate to comment on the particulars of this case.”

The Hudson’s Bay location in downtown Toronto has been either closed or under strict capacity restrictions since March 17, 2020.

But Mackenzie Irwin, an employment lawyer representing Mitchell, said it’s illegal for an employer to make significant changes to an employee’s hours of work, pay or duties — even during the pandemic — unless they have consent from that person.

“What HBC is trying to do is change the terms of her employment such that they could potentially award her zero hours in any given week,” said Irwin, an associate with Samfiru Tumarkin LLP in Toronto.

“It creates serious instability… and is quite palpably unfair.”

A worker has the right to treat sweeping changes to their job as a termination through constructive dismissal, and leave with an amount of severance based on their age, years of service and position, she added.

“Our firm has seen examples in the past where a company has drastically cut down a long-term employee’s hours,” Irwin said. “Once that individual has worked under this new arrangement long enough, they are let go from their job and offered an inadequate severance package based not on their previous qualifications, but instead their new and reduced hours of work.”

A recent court decision — the first of its kind to deal with a COVID-19 layoff in Ontario — could be favourable to Mitchell’s case, said employment and business lawyer Adam Savaglio.

The Ontario Superior Court decision confirmed that common law rules on layoffs override Ontario’s Infectious Disease Emergency Leave legislation, he said.

“This decision where a constructive dismissal has been found as a result of a pandemic-caused layoff has swung the pendulum in favour of employees to the serious detriment of employers,” said Savaglio, a partner at Scarfone Hawkins LLP.

“This has the potential to tie up the courts with more claims against businesses that haven’t been generating income,” he said. “It could be nuclear for businesses facing termination payouts, that are already struggling with forced closures and restrictions on business.”

On Mitchell’s case, Savaglio said there are some genuine issues raised in the claim, without even taking into consideration the recent court decision.

For example, he said an employer can’t fundamentally change a contract without consideration or working notice to the employee, and that an individual’s time on layoff may not be considered “working notice.”

Still, he said there are obligations for workers to mitigate their losses, such as attempting to find other comparable work.

Meanwhile, Mitchell said she’s not alone. She said she knows of several other longtime HBC workers who have had the terms of their employment similarly altered.

In January, HBC said it was permanently laying off more than 600 workers as a result of ongoing lockdowns that have shuttered many of the retailer’s stores across the country for months.

Many of those workers received a so-called working notice, which means they are expected to work until the termination date.

Employment lawyer Lior Samfiru, a partner with Samfiru Tumarkin LLP, called it “absurd” to offer working notices when stores are closed and said HBC should be providing severance pay.

For Mitchell, she said she was a loyal and dedicated employee for 21 years.

“They had a choice to package me out, to give me a severance and be done with it,” she said. “Instead they’ve changed my position so that come September, they don’t owe me anything — no benefits, no pension, not even hours.”

“I’ve worked so hard,” she said. “I just want what’s fair.”

Brett Bundale, The Canadian Press

Labour

Just Posted

A nurse gets a swab ready to perform a test on a patient at a drive-in COVID-19 clinic in Montreal, on Wednesday, October 21, 2020. THE CANADIAN PRESS/Paul Chiasson
Island’s daily COVID-19 case count drops below 10 for just the second time in 2021

Province reports 8 new COVID-19 cases on Vancouver Island Wednesday

Ancient Forest Alliance campaigner Andrea Inness walks beside an enormous western red cedar stump in a BCTS-issued cutblock in the Nahmint Valley. (PHOTO COURTESY TJ WATT)
B.C. forestry watchdog finds lack of compliance in Nahmint logging

Forest Practices Board says old growth and biodiversity near Port Alberni are at risk

Port Alberni Fire Dept. deputy chief Wes Patterson, right, and another firefighter monitor the front of a garage at Second Avenue and Argyle Street that burned on Wednesday, May 12, 2021. (SUSAN QUINN/ Alberni Valley News)
Fire starts in empty garage on Argyle Street in Port Alberni

Garage was attached to empty multi-storey commercial building

A painting by Port Alberni artist Robert Hall. Hall uses a technique called Abstract Impressionism. (SUBMITTED PHOTO)
ARTS AROUND: Port Alberni artist showcases abstract impressionism

Robert Hall’s paintings on display at Rollin Art Centre until May 29

Rob Mah was just 20 when he hosted Strictly Jazz, a radio show on CJAV radio in Port Alberni, B.C. A fan of the Big Band era of music, he spun a lot of Dixieland jazz on his show. (PHOTO COURTESY MAH FAMILY)
QUINN’S QUIPS: Radio station’s 75th brings memories to Mah family

Celebrating the late Rob Mah’s victories timely for national Asian heritage month

Marc Kielburger, screen left, and Craig Kielburger, screen right, appear as witnesses via video conference during a House of Commons finance committee in the Wellington Building in Ottawa on Tuesday, July 28, 2020. The committee is looking into Government Spending, WE Charity and the Canada Student Service Grant. THE CANADIAN PRESS/Sean Kilpatrick
BREAKING: Trudeau didn’t violate conflict rules over WE Charity, watchdog says

Federal ethics commissioner Mario Dion found that former finance minister Bill Morneau did violate the rules

Pixabay
Island Health: two doctors, new clinic space to avert Port McNeill health crisis

Island Health has leased space to use as an immediate clinic location to avert health crisis

Police investigate a fatal 2011 shooting in a strip mall across from Central City Shopping Centre, which was deemed a gang hit. The Mayor’s Gang Task Force zeroed in on ways to reduce gang involvement and activity. (File photo)
COVID-19 could be a cause in public nature of B.C. gang violence: expert

Martin Bouchard says the pandemic has changed people’s routines and they aren’t getting out of their homes often, which could play a role in the brazen nature of shootings

Tinder, an online dating application that allows users to anonymously swipe to like or dislike other’s profiles. (Black Press Media files)
B.C. man granted paternity test to see if Tinder match-up led to a ‘beautiful baby’

The plaintiff is seeking contact with the married woman’s infant who he believes is his child

Nurse Tami Arnold prepares to administer a COVID-19 vaccine. (Kareem Elgazzar/AP)
B.C. adults 30+ now eligible to get vaccinated against COVID-19

Health officials made the announcement Wednesday afternoon

Erik Christian Oun, who worked for the Coquitlam school district, has had his teaching licence suspended for half a year. (Pixabay)
B.C. teacher suspended after calling students ‘cutie’ and ‘sweetheart’ in online messages

Erik Oun’s licence has been suspended for half a year, a decision made by the B.C. Commissioner for Teacher Regulation

An Israeli attack helicopter launches flares as he flies over the Israeli Gaza border, southern Israel, Thursday, May 13, 2021. (AP Photo/Ariel Schalit)
Singh calls for halt on Canadian arms sales to Israel as violence escalates in region

Government data shows Canada sent $13.7 million in military goods and technology to Israel in 2019

Scenes like this one in the dugout are all too frequent for parents and kids arriving to play baseball at Nunns Creek Park these days, spurring a request to the city to let them move to the Sportsplex in Willow Point. Photo from CRMB presentation to City of Campbell River
Needles, feces and the unhoused send Island kids baseball program to greener pastures

Campbell River minor baseball program switches ballparks over growing safety concerns

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

Most Read