Canadian Employment Law Today

CANADIAN EMPLOYMENT LAW TODAY CASE IN POINT: EMPLOYMENT CONTRACTS Changes to duties occurred before promotion ...continued from page 4 Old contract didn't apply to new position: Employee Miller said the differences in his responsibilities as a senior manager client services were "drastic" from those he had as a client services manager. He said the amount of budgetary responsibility doubled between the two U.S. sites from the Kamloops site, he was able to hire employees, had more people reporting to him, and was on call outside of regular work hours. In addition, his travel increased significantly, he said. The court found Miller's role as a senior manager client services was not significantly different from that of a client services manager. Though he had to travel more, that happened when he changed clients before he was promoted. In addition, despite the increase in budget with the new client, Convergys presented evidence that showed the volume of work was about the same. Therefore, Miller's claim his employment changed drastically when he became a senior manager wasn't the case and the contract he signed when he became a client services manager was still valid, said the court. "I find the changes Mr. Miller described to his employment occurred when he moved from managing (the Kamloops client) to managing (the U.S. client) in the fall of 2009," said the court. "The promotion he received to senior client manager in July 2010 recognized his increasing importance to (the U.S. client) and the growth in (the U.S. client's) business with Convergys. I find that change in employment responsibilities to be a natural progression within the role of a client services manager." The court also noted Miller's employment contract expressly stated that it would continue to apply if his role changed. Specifically, the termination provision said: "changes in position, responsibilities, salary or benefits will not invalidate any provision in this contract unless changes to any provision in this contract are expressly agreed to by the parties." 'Without notice' probationary period in contract didn't apply to employee who had already been working for three years The court also disagreed with Miller's claim the notice provision was ambiguous. Miller argued the provision stated he would be provided with notice, or pay in lieu of, in accordance with the B.C. Employment Standards Act. However, he said, the clause did not say he was only entitled to the minimum notice. The court found a plain reading of the clause made it clear the employee was entitled to the minimum notice provided in the act. The court also found the unconscionable argument didn't fly, since the clause denying notice for dismissal dur- Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. Recent topics include vacation right before a resignation date, the dangers of assuming older workers want to retire, bereavement leave, misconduct by long-term employees, perception of harassment and balancing employee family obligations. You can view the blog on www.employmentlawtoday.com. ing a probationary period didn't apply to Miller, who had been employed with Convergys for three years when he signed the last contract. Even if it could be seen as imposing a "without notice" probationary period on Miller in 2006, the court found there was a provision that stated all parts of the contract were "separate and distinct covenants" and allowed for severing individual provisions without affecting the validity of the overall contract. Therefore, the contract didn't breach the act, said the court. As for giving him an opportunity to consider the contract, the court found 24 hours was a reasonable time to consider the terms and it specifically stated he could "feel free to seek independent legal advice." Miller opted not to follow this recommendation. In addition, he had previously signed two very similar contracts with Convergys and should have been familiar with the language and terms, said the court. The court also noted Miller had a good relationship with his manager and his termination was delayed as much as possible. Miller was also given an opportunity to search for other positions within the company and a second interview for one was requested shortly before his termination. In a claim for punitive damages, Miller pointed out his medical services plan benefit was cut off after three weeks instead of lasting the full seven weeks, a sign of bad faith by Convergys. However, the court found this was "inadvertent and not an intentional act of malice" on the part of Convergys. The court dismissed Miller's claim, finding the termination provision in the employment contract he signed as a client services manager still applied to his dismissal as a senior manager client services. CELT For more information see: ■ Miller v. Convergys CMG Canada Limited Partnership, 2013 CarswellBC 2644 (B.C. S.C.). Published by Canadian HR Reporter, a Thomson Reuters business 2013 5

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