Canadian Employment Law Today

Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations @thomsonreuters.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2016 Thomson Reuters Canada Ltd. 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, photocopying, 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. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Water treatment plant operator washed away THIS INSTALMENT of You Make the Call involves an Alberta water treatment opera- tor who was hired and fi red in one week. Helen Marietta was a wastewater treat- ment plant operator and water distribution plant and systems operator. In October 2011, she applied to a job posting for an "em- ployment opportunity" with Regional Water Services that she saw on the Internet. e posting mentioned fl ex hours, wages, ben- efi ts and a signing bonus. Regional Water Services was a water company providing 287 sites at a housing development in the Co- chrane Lakes region of Alberta and the job posting mentioned a signing bonus and the opportunity to train and live at the housing development. Marietta met with Lynn Cellars and toured the development and the water treatment plant. ey discussed wages, benefi ts and housing and the two reached an agreement. Marietta signed an employment agreement with "Jeff Colvin aka Regional Water Ser- vices and Salt Box Services" and began her employment on Oct. 10, 2011, after giving notice to her previous employer. Jeff Colvin was the president and director of Medallion, a management company that operated a number of businesses including Regional Water Services. Cellars was Medal- lion's controller and helped run Regional. From Oct. 10 to 17, Marietta worked at the water plant daily. She conducted an initial assessment of the plant and ensured maintenance and systems were current and optimized. Cellars visited every day. At the end of that week she received a $20 cheque for reimbursement of expenses and a $5,000 cheque for the signing bonus referred to in the employment agreement. On Oct. 15, Medallion terminated Cel- lars' employment and changed the lock box code for Regional, which the company pro- vided to Marietta. At the same time, Colvin emailed Marietta saying it was urgent that she speak with him. Colvin also left mes- sages on Marietta's phone to the same ef- fect, but Marietta didn't reply to the email or the messages. On Oct. 17, Marietta arrived at the water plant and couldn't get in. e same day, she received an email from Colvin advising her employment was terminated. Marietta sued for wrongful dismissal, seeking $25,000 in damages plus compen- sation for unpaid salary and benefi ts. Col- vin denied Marietta was in an employment relationship with him or Medallion, saying Regional had no employees and all previous operators of its plant were retained as con- sultants and paid on an invoice basis. He also said Cellars acted without authority in hiring Marietta, which she should have known. YOU MAKE THE CALL Was Marietta wrongfully dismissed? OR Was there just cause to terminate Marietta's employment? IF YOU SAID Marietta was not wrongfully dismissed, you're right. e court found the job posting's references to "employment op- portunity, hours of work, wages, benefi ts and signing bonus were all indicative of an employment position, not a consultant. In addition, the agreement Marietta signed was called an employment agreement and referred to terms relating to an employment relationship. e court also found Marietta's discus- sions before being hired related to salary and no mention was made to payment by invoice. All of these factors pointed to the establishment of an employment relation- ship between Marietta and Regional Water Services, the court said. ough no mention was made to Mari- etta of Medallion in her negotiations or in the employment agreement, Jeff Colvin was listed as her employer and Medallion ran Regional. e close relationship between Medallion and Regional demonstrated the two entities had "common control" by Col- vin over the activities of both, said the court. e court also found that although Col- vin didn't confi rm and ratify the employ- ment agreement with Marietta, Cellars acted as his agent. Cellars represented Regional in setting up the job posting and discussing the opportunity with Marietta, and the evidence showed Cellars also rep- resented Regional to the provincial govern- ment. In addition, Cellars' role was to oper- ate the Regional water treatment plant, so it was clear he acted on behalf of Colvin and Medallion. However, though Marietta was in fact an employee of Medallion, her actions in not answering Colvin's urgent messages were not appropriate for her position, given the importance of public health and trust in the position. e court found Marietta's refusal to respond to Colvin's eff orts to contact her were "serious examples of insubordination and deliberate disobedience of reasonable requests" that justifi ed terminating the em- ployment relationship. e court dismissed Marietta's claim for damages. For more information see: • Marietta v. Colvin, 2015 CarswellAlta 558 (Alta. Prov. Ct.).

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