Canadian Employment Law Today

6 | September 26, 2018 Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends a job as a front-line salesperson in the lower mainland of B.C., saying the position would be working primarily with new construction projects with occasional work in renovation construction projects — with the new con- struction projects having the potential of earning Greenlees at least $100,000 per year after a period of six to nine months to "actu- ally get your feet going." e job offer included a salary of $3,500 per month with three per cent commission on single family projects and one-and-one-half per cent commission on multifamily and large projects, with a cap of $500,000 on the latter. e Starline sales manager said after three months, the com- mission on single family projects would be increased to six per cent, while the job offer stated compensation would be "up for review on or before the three-month probation date." e stated salary represented only a small increase from Greenlees' salary with his cur- rent job, but the greater earnings potential from commissions and increased freedom that he perceived tempted him to take the position with Starline. He signed the offer of employment on Feb. 18, 2017, and resigned from his existing employment. Assignment not what worker expected Greenlees started working for Starline on March 3. Within a couple of weeks, the sales manager told him he would be working on renovation projects rather than new con- struction projects. Renovation projects had less earning potential, but the sales man- ager said the move would be temporary and Greenlees would be put back on new con- struction projects at the end of his proba- tionary period. Greenlees completed his probationary period in June 2017, but he remained on ren- ovation projects and his commission stayed at three per cent. e sales manager told him to be patient, but the manager was fired in August. Greenlees inquired about the sales manager position, but was told another person had already been hired for new resi- dential construction and Greenlees would remain handling renovation projects. On Sept. 14, 2017, Starline terminated Greenlees' employment. e company didn't officially indicate any cause for dis- missal, so the termination was without cause. It gave him one week's wages and one week's commission based on his six months of service with the company. It also opted not to provide him with a reference letter. Greenlees began to look for work imme- diately, but he wasn't able to find work for seven months, when he found a sales posi- tion with a building products company in April 2018. He sued Starline for wrongful dismissal, claiming damages for reasonable notice and inducement from secure employ- ment with bad-faith promises regarding his compensation and position with new con- struction projects. e court noted that previous cases had established that a short-term employee of less than one year of service who is dismissed without cause, without extraneous circum- stances such as bad-faith employer conduct or a difficult employment market, usually deserves a reasonable notice period of two- to-three months, pending adjustment for age, length of service, and job responsibility. However, there were other factors to con- sider — Greenlees' claim of inducement and bad-faith conduct by Starline when it didn't put him in the new construction sales posi- tion and limited his earnings potential that had been promised and had influenced his decision to join Starline. Forecasts weren't guarantees e court found that Greenlees' discussions of the position at Starline with the sales man- ager at the time produced reasonable ex- pectations for Greenlees regarding income and responsibilities and should carry some weight. However, they were based on fore- casts and were not guarantees, said the court, pointing out that the job offer and employ- ment agreement set out Greenlees' compen- sation to start and indicated it would be "up for review" after the probationary period elapsed, but there was no set increase guar- anteed. While the sales manager's represen- tations were "bait" that induced Greenlees, once inducement was determined it didn't matter that Starline didn't follow through with them in the context of reasonable no- tice. If those representations weren't in the employment contract, Starline's failure to meet them wasn't a breach of the employ- ment contract, the court said. e court also found that the amount of time it took Greenlees to find new employ- ment demonstrated the limited availability of alternate similar employment. is, along with Greenlees' age and the inducement were factors to consider in determining the reasonable notice entitlement. e court determined that Greenlees was entitled to six months' notice of termination. After subtracting the one week's salary and commission that Starline had already paid to Greenlees, Starline was on the hook for $28,400.88 pay in lieu of notice, plus $8,000 in costs. For more information see: • Greenlees v. Starline Windows Ltd., 2018 BCSC 1457 (B.C. S.C.). Promises were inducement whether they were kept or not « from WORKER FIRED on page 1 CREDIT: TIKO ARAMYAN/SHUTTERSTOCK WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as pay equity audits, developing effective employee handbooks, and dealing with sexual harassment in the #MeToo era. To view the webinar catalogue, visit cpdcentre.ca/hrreporter.

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