PHOTO: (THE CANADIAN PRESS / Sean Kilpatrick)
At the start of March, hundreds of fitness instructors were terminated by GoodLife Fitness via mass email — but countless employees had already lost their jobs, with no severance pay, two weeks earlier, according to former employees.
The difference is that those who found their employment at an end in February were not officially let go, the way 480 GoodLife employees were on March 2.
This group were told that they had “voluntarily withdrawn employment” because they failed to respond on time to a survey with a 10-day deadline sent only to their work email.
This meant that if employees — the majority of whom were furloughed or temporarily laid off due to the pandemic and thus not checking their GoodLife email on a weekly basis — didn’t see the email, the company would consider them ineligible to receive severance pay.
“That’s not what we call a voluntary resignation,” Jon Pinkus, a Toronto-based employment lawyer and partner at Samfiru Tumarkin LLP, told CTVNews.ca in a phone interview.
“Whenever a court is looking at a question as to whether a resignation is genuine, they have to show that the resignation is clear and unequivocal, that the employer accepted that resignation, […] and that there’s basically been an agreement that the employment was going to end. And you just don’t have any of that here. You don’t have any intention being expressed by the employees.”
GoodLife would have to claim that these employees had “abandoned employment,” Pinkus said.
“They would argue that these were fundamental questions to their employment and their failure to answer is tantamount to abandonment of employment.”
Amy Evans, a former GoodLife employee of 15 years who was terminated on March 2 with severance pay, told CTVNews.ca by email that she has numerous coworkers who simply didn’t see the emails about the survey and feel “blindsided.”
“I was on a call with about a dozen instructors last night — both terminated and those who unknowingly withdrew employment — and most of them were extremely upset, and did indeed feel blindsided, hurt, angry, and helpless,” she said. “Particularly those who missed the survey […] were absolutely shocked to discover that this equated to them either abandoning their employment through failure to communicate, or voluntarily withdrawing employment.”
She said one instructor told her they didn’t check their email during the 10-day period because they were “taking care of a dying relative,” and were then told they had abandoned their job. Another had worked for GoodLife for 20 years and was given no severance, Evans said.
Employees who saw the emails after the deadlines had passed and tried to reach out to express that they didn’t want to withdraw their employment were stonewalled, she said.
“Several attempted to make calls and try to understand what happened. They were told it was too late; that [GoodLife] was moving on to the next round and they could not change their minds,” Evans said.
It’s unclear how many employees lost their employment due to failing to answer the survey in the time period. Evans said former employees have speculated that it could be in the hundreds.
GoodLife Fitness confirmed in a statement to CTVNews.ca that a survey was sent in January regarding returning to work, and that reminder emails were sent over a period of two weeks, which included a brief extension on the original deadline.
But many employees say they didn’t understand that responding to the survey would impact their employment status and whether they would receive severance.
YEARS OF EMPLOYMENT TO NO SEVERANCE PAY
Just a few weeks after numerous employees were told they had voluntarily withdrawn employment, hundreds of employees were officially terminated on March 2, with GoodLife citing COVID-19 challenges as a factor.
GoodLife previously told CTVNews.ca that “all terminated instructors were provided with their entitlements, including termination pay and/or severance pay.”
When employees are terminated, depending on their position and the years they worked for the company, they can be entitled to varying levels of severance pay, anywhere from 6-24 months of pay, according to Pinkus.
But this pay does not need to be extended to those who abandon their employment.
“As word got around, it became clear that some people got severance pay and some didn’t,” Evans said. “This is when people started asking questions and feeling very badly treated. We’ve now come to understand that severance or no severance depended entirely on the survey.”
GoodLife Fitness did not respond to questions about this allegation in their statement.
Pinkus recommended non-unionized former employees get in touch with a lawyer if they calculate that they are owed a significant amount of severance.
“There’s no way to prove that many of these employees saw [the emails],” Pinkus said.
“All these employees have to say is that ‘I was intending to respond,’ or, ‘I didn’t receive [the emails],’ […] and I think that GoodLife is gonna have a tremendously difficult time trying to show that they reasonably inferred from this that these employees abandoned their employment.”
He said GoodLife Fitness may have made a calculation and found that the number of people likely to bring a lawsuit against them would cost them less money overall than paying severance to all of the employees they needed to let go.
“It’s almost the universal standard in terms of how employers, particularly ones engaged in mass terminations, are going to do this,” he said.
“I think the part of it that is really upsetting about it is that it takes advantage of people who may not have earned very much, may not have the wherewithal or ability to challenge it.”
IS TWO WEEKS ENOUGH?
How much warning is required is one of the intricacies at the centre of this issue.
A former employee shared with CTVNews.ca the series of emails apparently sent from GoodLife Fitness between the end of January and mid-February which led to their employment ending.
An email sent Jan. 27 asked GoodLife’s group fitness instructors to fill out a form regarding their “interest and ability to return to teach at GoodLife”. The email specified that the form needed to be filled out by Feb. 6 in order to aid with “planning efforts”.
A reminder email was sent on Feb. 1, but it wasn’t until a third email on Feb. 4 that a new detail emerged.
“If we do not receive a response from you, we will interpret that to mean that you are not interested in returning to teach at GoodLife at this time,” the email stated underneath the standard reminder to fill out the form.
This was two days before the stated deadline of Feb. 6, and appears to have been the first time this information had been communicated.
On Feb. 8, another email offered a deadline extension until 5 p.m. on Feb. 9, around two weeks after the very first email on Jan. 27.
On Feb. 15, an email concluded that “your failure to respond and communicate is viewed as a voluntary withdrawal from employment with GoodLife and your employment is now at an end.” The email extended a complimentary five-year GoodLife Fitness membership “in recognition of your previous service.”
CTVNews.ca sent a detailed list of questions to GoodLife Fitness regarding the timing and content of emails sent to employees about the form.
GoodLife Fitness responded with a statement from company president Jane Riddell on Wednesday.
“In late January, we sent an Intent to Return to Work form to all instructors who had not yet returned to work to gauge their interest and ability to return to teaching at GoodLife Fitness,” she stated. “In this email, we indicated we were in the process of planning for the near future, and a critical part of that was understanding the availability of our instructors going forward.”
The statement confirmed that emails were sent through employees work emails only, and that personal channels such as phone numbers that GoodLife would have had on file for employees were only used “in the few instances” where an email failed to deliver.
“Instructors were asked to reply over a two-week period, which coincided closely with the reopening of our clubs in Ontario, British Columbia, and New Brunswick,” Riddell said. “To ensure we captured as many responses as possible, we indicated a deadline to respond in an initial email and the three reminders emails we sent to anyone who had not replied to the original email. We also provided an extension to the initial deadline.”
GoodLife did not clarify if a warning was included in every email that instructors’ employment was contingent on responding, or explain why initial emails might not have contained that information.
It is unknown if all GoodLife employees were sent the same emails or if it differed by province or gym.
There are no hard-and-fast rules for how long an employer has to try to contact an employee before they can claim that an employee has abandoned employment, Pinkus said, adding that it depends on the situation.
“If we’re just talking about lack of response, what matters is context? Did the employer have a basis to believe that the employee was intending not to work there anymore?” he said.
“Certainly repeated efforts by the employer, I’d say at least two or three attempts is what I’d want to see, if I had an employer client who wanted to allege abandonment of employment in these circumstances.”
Former employees believe GoodLife did not give sufficient time for employees to see the emails, or provide clear enough communication for them to understand the stakes of responding on time.
“People genuinely had no idea that their employment was contingent on responding to the survey,” Evans said.
“I cannot express how sad and hurt some of these instructors are. There were definitely tears. What happened wasn’t fair, but now it seems like unless you want to take legal action and pay out of your own pocket, and assume all the time and energy it will take to fight this corporate giant, there is really nothing left to be done.”
Evans did fill out the Return to Work form during the specified timeline — she was among the group who were officially terminated on March 2 and received severance pay.
The GoodLife Fitness club she’d worked at most recently in Ottawa had actually closed permanently in 2020, she said, and she wasn’t surprised at all to be terminated, even if she’d hoped to “at least be a substitute teacher” when more gyms reopened.
It was the unfairness of the situation facing so many of her colleagues that made her want to speak up, she said.
“[I] am upset at how others were, in my opinion, tricked into resigning as a way for GoodLife to avoid paying severance,” she said.
Many fitness instructors who worked at GoodLife also cannot jump into fitness work easily elsewhere, Evans said, due to GoodLife being the sole gym in Canada that is licensed to offer the coveted Les Mills programs. Instructors with Les Mills programs can’t take them elsewhere, leaving some starting from scratch.
“There really is a bad faith component to it,” Pinkus said. “These employees have been laid off and were already in a potentially vulnerable state if they had been just waiting to come back.”