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

Asymptomatic testing will now be available for "priority groups" who are most likely to spread the COVID-19 virus to vulnerable or at-risk populations. File photo by THE CANADIAN PRESS
Alberta adds 1,195 new COVID-19 cases Saturday

Red Deer has dropped to 760 active cases

MP Damien Kurek receives his COVID-19 vaccination. (Photo submitted)
Local elected representatives get the jab

MP Damien Kurek and MLA Lovely get their COVID-19 vaccinations

Alberta’s chief medical officer of health Dr. Deena Hinshaw is asking Albertans to do their part by observing gathering limits, staying home if unwell, wearing masks and maintaining physical distance. (Photo by Chris Schwarz/Government of Alberta)
Three new Central zone COVID-19 deaths, Alberta adds 1,433 cases

Red Deer down to 802 active cases of COVID-19

Alberta’a chief medical officer of health Dr. Deena Hinshaw said Thursday that there are more than 328,000 vaccine appointments booked over the next seven days. (Photo by Chris Schwarz/Government of Alberta)
Alberta surpasses 2 million doses administered of COVID-19 vaccine

Red Deer down to 835 active cases of COVID-19

Chris Scott, owner of The Whistle Stop Cafe, was put in handcuffs after an anti-restriction protest Saturday in the parking lot of the business. (Screenshot via The Whistle Stop Facebook page)
Alberta RCMP investigating possible threat to police after Mirror rally

Images show RCMP members and vehicles in crosshairs of a rifle

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
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

Welcoming cowboy boots at the historic and colourful Last Chance Saloon in the ghost town of Wayne near Drumheller, Alta., on Thursday, Sept. 19, 2019. The bar and hotel are up for sale. THE CANADIAN PRESS/Jeff McIntosh
‘It was a going concern’: Remaining bar and hotel in Alberta coal ghost town for sale

The historic Last Chance Saloon in the ghost town of Wayne in southern Alberta is up for sale

The lights of several emergency vehicles could be seen near the Sunken Bridge on May 13. (Photo submitted)
Patient airlifted from Ponoka with serious injuries

RCMP, fire, STARS respond to single vehicle rollover May 13

Chief Public Health Officer Theresa Tam listens to a question during a news conference, in Ottawa. THE CANADIAN PRESS/Adrian Wyld
Restrictions will lift once 75% of Canadians get 1 shot and 20% are fully immunized, feds say

Federal health officials are laying out their vision of what life could look like after most Canadians are vaccinated against COVID-19

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

New homes are built in a housing construction development in the west-end of Ottawa on Thursday, May 6, 2021. THE CANADIAN PRESS/Sean Kilpatrick
Budget’s foreign-homebuyers tax could bring in $509 million over 4 years, PBO says

Liberals are proposing a one per cent tax on vacant homes owned by foreign non-residents

A Canadian flag patch is shown on a soldier’s shoulder in Trenton, Ont., on Thursday, Oct. 16, 2014. The Canadian Forces says it has charged one of its members in the death of an army reservist from British Columbia during a training exercise at a military base in Alberta last year. THE CANADIAN PRESS/Lars Hagberg
Canadian Forces member charged in death of army reservist during training exercise

Cpl. Lars Callsen has been charged with one count of negligence

A youth plays basketball in an otherwise quiet court in Toronto on Saturday April 17, 2021. The Canadian Civil Liberties Association is urging the federal and provincial governments to fight COVID-19 pandemic by focusing on proven public health policy interventions including paid sick leave, and education rather than punitive enforcement measures. THE CANADIAN PRESS/Chris Young
Provinces issued more COVID-19 tickets during 2nd wave: CCLA report

‘A pandemic is a public health, not a public order, crisis,’ reads the report

Most Read