Canadian Employment Law Today

How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL ©2019 HAB Press Limited, a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under license by HAB Press Limited. CANADIAN EMPLOYMENT LAW TODAY is a trademark of HAB Press Limited. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photo - copying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 70318 4911 RT0001 Emplo y ment Law Today Canadian www.employmentlawtoday.com Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE info@keymedia.com www.employmentlawtoday.com 20 Duncan St. 3rd Floor, Toronto, ON M5H 3G8 President: Tim Duce Editor: Jeffrey R. Smith Email: jeffrey.smith@keymedia.com Copy Editor: Patricia Cancilla Sales Manager: Paul Burton Email: paul.burton@keymedia.com Phone: (416) 649-9928 Marketing Co-ordinator: Keith Fulford Email: keith.fulford@keymedia.com Phone: (416) 649-9585 HAB Press Ltd. Worker jumps the gun on signing termination clause and release THIS INSTALMENT of You Make the Call involves a fired worker who disputed the validity of her termination clause and termination letter that she signed too quickly. e worker was hired in October 2016 by Wilson Fuel Company — a fuel supplier in Atlantic Canada — to be the manager at the company's store in Sydney Mines, N.S. over- seeing five to eight employees. e offer of employment included a termination clause that stipulated that Wilson could terminate the worker's employment at any time with- out cause by providing "working notice or pay-in-lieu of notice in accordance with the NS Labour Standards Code." e worker was excited about the job offer and didn't take much time to review it. She gave the termination clause a "brief skim... a quick read," but she didn't fully review it. ere was also no discussion about it with Wilson management and, although she was given some time to review the offer, she signed the electronic copy the same day and provided a handwritten copy one week later. However, by April 2017, the worker was finding the job demanding and suggested to her supervisor that she should look for someone else to be the manager of the Syd- ney Mines store. e company instead of- fered her a salary increase, which the worker accepted and continued in her role. e worker had a performance review on July 1, 2017 that made her feel like a val- ued employee. She also believed her store was doing well, although it had failed a few evaluations by mystery shoppers. In addi- tion, a couple of employees quit because they didn't like how she was managing the store. Other employees also complained about feeling bullied and harassed by the worker, but Wilson management didn't dis- cuss these issues with her. On Oct. 25, 2017, the worker expected her supervisor to come to the store for the monthly inventory. However, the manager of another location arrived first. When the supervisor arrived, she asked the worker and the other manager to accompany her to the stock room, where she apologized and told the worker her employment was be- ing terminated. e supervisor then gave the worker a termination letter that stated, "Although we are not alleging just cause, the reason underlying your termination of employment is your lack of fit for the orga- nization." Accompanying the termination letter was an "acceptance and release" clause. e su- pervisor told the worker she could take up to one week to consider the letter and release and bring it back later, but she noted that the sooner the worker signed it, the sooner she would receive her pay in lieu of notice un- der the Nova Scotia Labour Standards Code plus an additional two weeks' pay for signing the release. e worker, who later described her feelings at the time as "embarrassed, overwhelmed, and flabbergasted" but didn't mention it to the supervisor, skimmed through the letter and signed on the spot. e worker soon after consulted a lawyer and filed a claim for wrongful dismissal damages of $10,000, arguing she wasn't in the right state of mind and was "thrown off " when she signed the release. Emplo y ment Law Today Canadian www.employmentlawtoday.com YOU MAKE THE CALL Did Wilson wrongfully dismiss the worker? OR Was the termination valid? IF YOU SAID the termination was valid, you're right. e court found that the employ- ment contract containing the termination clause that the worker signed when she joined Wilson was a lawful contract of employment. Although the worker didn't fully read it or seek legal advice before she signed it, she was given sufficient opportunity to do so. e court also found that the accept and release clause in the termination letter was also legal and written in plain language. Af- ter signing it, the worker may have felt that she wasn't in the right state of mind, but she was given the chance to take some time to think about it and she also didn't indicate any confusion about it to the supervisor at the termination meeting, said the court. e Nova Scotia Employment Standards Code requires one week's notice of termi- nation to employees with less than two years of service — which Wilson provided to the worker. e additional two weeks were conditional on signing the release and were sufficient consideration for doing so, said the court. e court determined that the termina- tion clause and release signed by the worker were valid and the worker was not wrong- fully dismissed. "...[At] both the offer stage and the termi- nation stage of her position as manager, time was built into the respective letters that af- forded the [worker] an opportunity to con- sider the contents and implications of both," the court said. "Based on the evidence before me, the [worker] at both the offer and the termination stage failed to avail herself of those opportunities." For more information see: • Carew v. Wilson Fuel Co. Limited, 2019 NSSM 28 (N.S. Sm. Cl. Ct.).

• Cover