Canadian Employment Law Today

6 | October 29, 2014 Canadian HR Reporter, a Thomson Reuters business 2014 Cases and Trends Employee called VP's actions 'idiotic' « from Poor Attitude on page 1 side of what was required by the Ontario Em- ployment Standards Act, 2000. In early 2011, Hoang felt Mann Engineer- ing was a "dysfunctional company" and its owner, James Mann, was unethical and un- trustworthy. He testified he received a better employment offer in April 2011, but rather than taking it he decided to try to renegotiate his contract with Mann Engineering. Contract renegotiated James Mann felt there were some issues with Hoang's job performance — such as an inabil- ity to do IT support and oversight — for which he had tried to coach Hoang and help him im- prove, but he agreed to make changes to Ho- ang's contract. An amended letter of employ- ment was prepared on April 21, 2011, which changed Hoang's duties so they focused on sales management for solar projects and core business activities such as management of the company's finances and tax planning. He was also to develop the company's solar business and would receive commissions on the sale of a large solar project for which a letter of intent had been concluded as well as future solar projects. e new agreement had a termination pro- vision for "reasons other than criminal activ- ity, sexual/human rights abuse or competi- tion" with Mann Engineering's business. Hoang testified he signed and returned the new contract to Mann's office while Mann was on vacation, but left it on Mann's desk. However, Mann claimed he didn't receive the contract and it wasn't in Hoang's employment file. e office manager didn't see it on the desk while she was covering for the vacation at the time Hoang claimed to have returned it. However, there continued to be issues with Hoang's performance, including losing an agreement for distribution rights that came about due to a failure to follow Mann's in- structions, as well as rude and unprofessional conduct with staff, salespeople and clients. One independent contractor reported that Hoang swore at him, refused to accept an older version of a memorandum of under- standing (MOU) from a "touchy client" for submission to the government, and told him to get out of his office. Mann took over the MOU and submitted it and it wasn't rejected. e contractor decided he wouldn't deal with Hoang any further. Mann Engineering's vice-president of management interacted with Hoang daily and also found he could be abusive and un- professional towards others. During the MOU situation, Hoang sent an email that said her actions were idiotic, to which she took of- fense. She also decided not to work with Ho- ang any further. Employee treated co-workers and customers poorly After a series of emails in which Hoang demonstrated resistance to follow instruc- tions and an attitude that showed inappropri- ate behaviour that could be detrimental to the company, Mann demanded Hoang apologize to his co-workers and mend the situation. Hoang replied by saying the co-workers he insulted were basically incompetent and he refused to apologize. Shortly thereafter, Hoang was in negotia- tions involving the large solar project and sent an email to the client's representative that was sarcastic and dismissive. Hoang denied this was inappropriate and described it as "nego- tiation strategy." Mann decided the employment relation- ship was irreparably damaged and on May 30, 2011, Hoang's employment was terminated. Hoang sued for wrongful dismissal and breach of contract, as well as sales commis- sion on the large solar project for which he had obtained the letter of intent. Hoang didn't help his case in testimony, as the court found his manner to be "argumen- tative, defensive and dismissive" while Mann and others who testified for Mann Engineer- ing to be "forthright, clear and concise." Ho- ang also continued to insist on his version of certain things even when faced with evidence that contradicted him, such as the emails. e court found the evidence supported Mann's claim that there were issues with Ho- ang's job performance during his short tenure with Mann Engineering, and he was coached on ways to improve. e coaching also served as notice the company had issues with his per- formance. e court also found the emails and tes- timony of Mann Engineering employees showed Hoang "displayed an unprofessional, uncollegial, insolent attitude toward his co- workers and displayed toward them an atti- tude of superiority throughout his employ- ment." Since the company was a small one of about 20 employees that relied on a closely- knit team, this kind of conduct was particu- larly damaging, said the court. e court agreed the tone and language of Hoang's communications with the client were also inappropriate for business use and not how clients or customers should be treated. Hoang's attempts at justification for both the internal and external communications showed he took no responsibility for doing anything wrong. "It appears that (Hoang) was either will- fully blind to the inappropriateness of it all or it simply seemed to wash over him," said the court. e court found Hoang demonstrated wil- ful and inappropriate misconduct in dealing with co-workers and clients, as well as in- subordination and refusal to acknowledge or understand his conduct was unprofessional. is provided just cause for dismissal, said the court. In addition, Hoang's claim he left the signed amended employment contract on Mann's desk couldn't be proven, as nobody else saw it and it wasn't in his employment file. is left the original employment contract and its ter- mination provision in effect. As for Hoang's claim for a commission on the large solar project, the court disagreed with him, finding a letter of intent was not a final purchase agreement. ere was noth- ing in the contract that indicated commission was to be paid upon the signing of a letter of intent. e court dismissed all of Hoang's claims for compensation for wrongful dismissal and commission. For more information see: • Hoang v. Mann Engineering Ltd., 2014 CarswellOnt 12612 (Ont. S.C.J.). 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 managing an aging workforce, mobile device management, family status accommodation, and key developments in employment law. To view the webinar catalogue, visit cpdcentre.ca/hrreporter.

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