Canadian Employment Law Today

October 2, 2013 CASE IN POINT: EMPLOYMENT CONTRACTS Employee's challenge of termination provision unsuccessful Employee claimed old contract didn't apply to new position after promotion, but court found contract was still enforceable BACKGROUND Withstanding scrutiny TERMINATION provisions in employment contracts can be helpful for an employer when it comes time to end an employment relationship. As long as employment standards minimums are adhered to, it can make the costs of termination a known quantity. But the language has to be clear, as any ambiguity can leave the door open for a challenge by the departing employee. But as the case below demonstrates, clear, plain language can stand up to such a challenge. | BY JEFFREY R. SMITH | THE BRITISH COLUMBIA Supreme Court has determined a contract signed by a dismissed employee was valid and its termination provision was not ambiguous, despite the fact the employee had moved to a new position since the contract was signed. Gerry Miller was employed with Convergys CMG Canada — a provider of customer care and billing services for businesses — since September 2003. He began as a telephone agent in Kamloops, B.C. and was later promoted to a team lead for other agents. In November 2006, Convergys promoted Miller to the position of client services manager. When he started with Convergys, Miller signed an employment contract. For each of his two promotions, he signed a new contract. His last contract included a termination provision that allowed for seven weeks' notice for dismissal without cause. During his time with Convergys, Miller did well and was viewed as a "stellar employee" by the company. The company's clients and his co-workers also liked him. When he was promoted 4 to client services manager, he worked with one client in Kamloops. When that client closed its Kamloops offices, he was given a role with a large client for whom Convergys provided services at two U.S. locations — Pueblo, Col., and Salt Lake City, Utah. Miller worked from home about half the time and travelled the other half. Part of the reason for the increased travel was that the Colorado location wasn't doing well and the client preferred Miller to be onsite whenever possible. Convergys became concerned about the cost of having someone travel from Canada to Colorado on a regular basis. Because the company felt Miller was the right man for the job and it was happy with his work, it encouraged him to relocate to the U.S. Employee didn't want to relocate to serve U.S. client Miller was reluctant to move to the U.S. for personal reasons. In 2010, he was promoted to senior manager client services, but did not sign a new employment contract. When it became apparent Miller would not relocate, Convergys tried to help him find a position within Canada, as it felt the client services manager working with the Colorado client needed to be either there or at its Utah location. Miller and his manager discussed things, as he knew Convergys would eventually have to terminate his employment in that position. Because the manager liked him and recognized his value as an employee, she delayed the decision as long as possible. However, in June 2011, she told him his position was being posted and he would be terminated without cause according to a "reduction in force" by the company. On June 30, 2011, Miller interviewed with Convergys' hiring manager about a senior analyst position in Canada. On July 12, he was notified they wanted a second interview. The next day, Convergys formally terminated his position as senior client manager for the U.S. client. He was given seven weeks' pay and benefits in lieu of notice. Miller filed a wrongful dismissal suit, claiming the employment contract was unenforceable because it didn't apply to his new position — he signed a new contract after each promotion except for the last one in 2010. He also argued the notice provision was ambiguous because a clause in the contract provides for no notice during a threemonth probationary period after signing the contract, contrary to employment standards legislation which required one week per year of employment. In addition, the contract was unconscionable because he only had 24 hours to consider it with no legal advice, said Miller. Published by Canadian HR Reporter, a Thomson Reuters business 2013 Continued on page 5

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