Canadian HR Reporter

CANADIAN HR REPORTER April 20, 2015 EMPLOYMENT LAW 5 Jeff rey Smith Legal VieW High Impact Evaluation ™ Don't just evaluate learning—Drive Impact! Join Canada's evaluation authorities, Dr. Lynette Gillis and Allan Bailey, to learn Canada's new High Impact Evaluation model and toolset. Strengthen evaluation practice—and go beyond! Use this results-focused model to ensure training is aligned and locked to the needs of the business. Drive performance, productivity and bottom-line results. Writing Effective Multiple-Choice Tests Gain professional confi dence in writing multiple-choice tests. Multiple-choice tests can be effective, practical, and objective. Unfortunately, the research shows a majority of MC tests are poorly constructed, deeply fl awed, or unfair. Ask yourself: How accurate are our tests? Are they clear? Fair? Legally defensible? Learn to write multiple-choice tests that are valid, effective, and fair! TORONTO Ottawa May 26-27 October 13-14 June 15-16 July 13-14 December 1-2 TORONTO Ottawa May 29 October 16 June 18 July 16 December 4 We do more than measure impact. We drive it! Tel. 905.823.3367 email: info@cfl i.ca www.cfl i.ca/workshops Mention code HRR15 for Special Discount Challenge of contract provisions a no-go for Nova Scotia engineer Agreement met legislative minimums, employee just regretted signing it: Court A Nova Scotia court has dismissed a fi red employee's claim that his employment contract was void because of a non-com- pliant severance provision and an inac- curate job description. Antoine Moarbes, 35, was hired in 2010 by Heka Electronics, a pro- vider of instrumentation for bio- medical and industrial research clients in Mahone Bay, N.S., to be an electronics hardware design engineer. At the time of hiring, Heka sent Moarbes an off er of employment for him to sign and return. e of- fer said frequent travel to Europe and in North America would be required. Moarbes reviewed the offer and suggested changes, including a change to the job title. Moarbes also asked for fl exibility in his start time — including leaving the of- fi ce at 3 p.m. on ursdays — one day per week of telecommuting and a shortened workweek. In addition, he asked for one month of severance for each year worked in the event of termina- tion without cause. Heka consented to changing the job title and said the travel would only be "a couple of times per year." e company didn't agree with the severance entitlement or Moarbes' other suggestions. e revised off er of employ- ment carried a termination clause that stated Moarbes would be entitled to seven days' advance notice of termination for each complete or partial year of em- ployment — or the equivalent in salary and vacation pay, but not unused sick days, in lieu of no- tice — in the event of termination without cause. It stated that if the termina- tion provision was "in confl ict with the Labour Standards Code of Nova Scotia, or any succes- sor legislation, then that legisla- tion will override this specifi c provision." Moarbes was concerned that if he didn't accept the job off er, it would be taken off the table, so he didn't bother consulting a lawyer. On Oct. 4, 2010, he signed the re- vised off er and started work. e revised off er said Moarbes' duties were "to design, develop, trouble- shoot and improve the hardware platforms and assemblies con- sistent with Heka's products and market requirements." He would report to Heka's president. Heka was a small company that didn't "stand on ceremony too much," and employees were sometimes expected to do diff er- ent things at diff erent times, de- pending on the company's needs. As a result, Moarbes felt he took on a larger role than initially in- dicated. He became an "unoffi cial go-between" for the small staff in the Canadian offi ce and Heka's president — who was usually in Europe — and an independent contractor who helped run the Canadian operation. Over a period of three years with Heka, Moarbes went on two trips outside of Canada. He re- quested additional trips to main- tain professional relationships with key people, but Heka felt electronic communication was enough for such purposes. Moarbes was asked to partici- pate in developing user require- ments — requiring interaction with customers — and translating them into technical requirements, which he felt was outside the scope of his job duties as described in the off er of employment and what he had done in similar positions with previous employers. In 2012, Heka hired a human resources consultant to evaluate the company's salaries. Moarbes requested his compensation be changed to give him greater fl ex- ibility in attendance at work, so Heka reached an agreement with him for a four-day workweek av- eraging 36 hours per week. His salary was converted to an hourly rate, requiring him to submit timecards. In February 2013, Heka hired a German-trained software en- gineer and Moarbes was asked to train him to help him become licensed in Canada. On Oct. 8, 2013, Heka termi- nated Moarbes' employment for shortage of work. Moarbes fi led a claim for wrongful dismissal, saying Heka acted in bad faith by making him train a replacement employee and creating a surplus of engineers in the company. He also said his employment contract was void because it did not com- ply with the minimum advance notice of termination provisions in the code by making a severance calculation based only on salary and not other entitlements such as benefi ts and vacation pay. Moarbes also claimed the original employment off er poten- tially breached the Labour Stan- dards Code because it required him to give two weeks' notice of ABSURD > pg. 16 Moarbes was concerned that if he didn't accept the job offer, it would be taken off the table, so he didn't bother consulting a lawyer.

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