Employment Law Case Brief Analysis Report
Introduction
This report captures Turner v. Uniglobe Custom Travel Ltd., 2005
ABQB 513, Vrana v. Procor Limited, 2004 ABCA 126, Donavan
Bravo v. Etobicoke Ironworks Limited, and David E. Glover Plaintiff
and SNC Lavalin Inc. in the court of Queen’s Bench in Alberta.
The report will first summarize all the cases and compare them based
on decision. The lessons learnt by both the employer and the
employee will be highlighted.
Summary of Glover versus Lavalin Inc
In the Glover versus Lavalin Inc. (1998) in the court of Queens bench
at Alberta, two pertinent issues that call for ventilation feature
prominently.
A number of questions are asked whether it is notable that Glover
had been constructively dismissed without due notification and
without due cause just after succumbing to fateful layoff that was
subsequently extended. Of concern is whether Glover did resign
when he turned down the extension of the layoff by Lavalin Inc.
It is known that Glover has worked for myriad companies for the past
two decades in the capacity of a safety supervisor where he initiated
preparation and implementation of construction site safety programs.
This thus implies that all the employs who worked at the construction
site entrusted him with their safety. For this period, Glover services
were contractual because he worked for a specific period of time on
specific projects.
In 1994, Glover was contracted albeit orally by the Plaintiff to work
as a safety supervisor in the latter’s project in Trinidad. This oral
agreement was formalized in a letter dated 30th August 1994. This
letter dictated terms of engagement between Glover, the Plaintiff and
the defendant.
It was some form of offer of employment. Glover accepted this on the
31st day of August 1994. Glover was to be paid an annual salary of
60000 dollars termed by the contract as home base salary. The
contract was to run for two years effective 5th September 1994.
Glover reported to work in Trinidad on 5th September, 1994. On 7th of
September 1994 Glover was given a deployment policy by the
Lavalin Inc. the policy extensively captured aspects of the terms of
Glover’s international assignment.
Some contents of the deployment policy were alien to the dictates of
the letter of 30th August 1994 with respect to salary of the plaintiff
which was increased to 67 500 dollars. The reasons advanced were
that the working weeks in Trinidad were longer.
Other than salary, terms of Foreign Service allowance, income tax
benefits, rest and relaxation leave were later introduced. Quite
outstanding was the conditions under which Glovers could be
returned to Calgary.
Clause 17 of the policy dictated that the contract between Glover and
Lavalin Inc. shall stand terminated when the former succumb to injury
or illness as to interfere with his ability to perform duties assigned to
him. This will consequently result into him being taken back to
Canada.
Moreover, when the client feels like the employee should be removed
or replaced for reasons best known to him, or if through formal
performance assessment by the Project Director, the conduct or
quality of work of the employee is found to be unsatisfactory, his
return to his home base in Canada would be the ultimate thing to do.
A representative of Lavalin Inc. approved this Deployment policy.
Glover in return made some handwritten modification to this
deployment policy which was not initialed by one A.B. McArthur.
Glover submitted the letter of assignment of agreement together with
the deployment policy to the defendant on 6th February 1995. The
letter of assignment of agreement was in the affirmative that Glover’s
salary would be 67 500 dollars and that the contract was to run for
19 months effective 5th September 1994.
Other than the above mentioned contents of letter of assignment of
agreement, it was assertive that changes made on it have to be
signed and dated by both the concerned parties and then sent. This
was supposed to conform to the requirements of section 20.0 of the
deployment policy.
When Glover came to Trinidad he was supervised by the company’s
resident construction manager Des Rees. During his formative
stages at Lavalin Inc., Rees was replaced by Jim Aitken as Glover’s
supervisor. They had coincidentally met in 1991, when he was
working on construction project Alberta.
Aitkin and Glover did not get along between February and April 1995
because they held divergent views pertaining to how Glover should
do his work.
When Glover was due for his rest and relaxation leave Aitken did
inform him that Petronin does not need his services and he should
never bother himself coming back to Trinidad after the leave.
He was instructed to report to Terry Waters, a construction manager
at SNC Lavalin Inc. Calgary office on 19th April 1995 for
reassignment. Nobody at Lavalin Inc. told him that his services had
been terminated. Moreover, he was never subjected to formal
performance assessment.
Glover returned to Calgary and did as he was advised to do. He was
given three letters by Walters. One of these letters confirmed that
Glover had indeed been removed from Petronin project in
accordance with clause 17 of the deployment policy.
Another letter put Glover into temporary layoff for two moths with
some benefits but without salary. Temporary layoff was to commence
on 22nd April 1995. This coincided with the day when Glover’s rest
and relaxation leave ended. Glover unsuccessfully sought for
employment during this period of layoff.
The plaintiff was informed about the possibility of extension of layoff
on 22nd June 1995 by Walters when the prior layoff was just about to
expire.
The plaintiff had previously been informed by the personnel manager
of SNC Lavalin Inc. in Montreal about the possibility of assigning him
in a construction work in Libya as early as July 1995 just before the
issue of extension of layoff was mooted.
Walters was clearly aware about the availability of this Libyan
assignment when he was asking Glovers whether he objected to
extension of his layoff. Glover’s evidence in regard to this request
can be contested as it is so conflicting.
He is so ambivalent in the way he gives responses during cross
examination and at one time alludes to ‘may be’ having said yes to
Walters. The defendant subsequently sent a letter dated 22nd April
1995 to Glover to confirm their previous day oral agreement to
extension of temporary lay off.
The plaintiff was expected to sign the letter as a manifestation of his
oral agreement. A copy of the letter was supposed to be returned to
Waters.
However, the plaintiff never signed the letter but instead with the help
of his counsel told the defendant that he objected to extension of the
layoff. He reiterated that his employment had been terminated
without due cause from 19th April 1995.
Waters again asked Glover on 28th June 1995 whether he was still
interested in the Libyan job. He was categorical that he was not
interested in working anymore for the defendant. The defendant took
Glover’s sentiments as a gesture to having resigned.
The plaintiff holds that the defendant contravened the deployment
policy and letter of assignment agreement by putting him on
temporary layoff. He says that he ought to have been removed only
and if he was sick, injured, or doing unsatisfactory work as stipulated
in chapter 17 of deployment policy.
The defendant, according to him, breached the deployment policy
and assignment agreement by unilaterally dismissing him. He
reiterates that subjecting him to temporary layoff was tantamount to
constructive dismissal hence a unilateral change in terms of
employment contract.
The plaintiff argues that he never resigned as alleged because he
had already been constructively dismissed by the defendant.
Furthermore he turns down the offer for extension of temporary
layoff.
Lavalin Inc. holds that the original employment contract that was
given to the plaintiff was meant for people who were being hired
indefinitely which were not the case with Glover if at all the
deployment policy and letter of Assignment agreement was only
meant to govern the relationship between the plaintiff and the
defendant.
The defendant adds that termination of plaintiff’s services was
consistent with the clause 17 0f the deployment policy. By the plaintiff
accepting to go on temporary layoff, he agreed that his services had
been terminated.
The defendant argued that extension of temporary layoff was
necessitated by both parties resolve to modify their contractual
relationship. He alleges that the agreement between him and the
plaintiff stood terminated when the plaintiff decided to resign.
Case decision
The letter dated 30th August 1994 confirmed the oral employment.
The letter basically governed the relationship between Glover and
Lavalin Inc. the letter dictates that the plaintiff could only be
dismissed due to economic reasons after being given notice of
termination of his payment.
The clause banishes the plaintiff to permanent termination of his
services if there is no work to be done. Coming into play of
assignment of agreement implies terms of agreement are no longer
governed by the letter of 30th August 1994.
There are no express provisions in the letter of assignment
agreement and the deployment policy that allows for temporary lay
off if at all clause 17 only provides for plaintiff’s return to his home
base. This cannot be mistaken to mean temporary layoff as it only
spells out conditions under which the plaintiff can removed from a
project.
The clause does not say that upon return to home base the employee
will not be paid. The defendant has no contractual right to layoff
Glover temporarily.
When the original agreement was signed on 31st August 1994, the
plaintiff was not told that while working in the foreign country he may
be returned to his home base on temporary layoff. The plaintiff did
not anticipate or expected such a thing to happen for he has not gone
through such experience in his working career.
If the defendant wanted to layoff his employees temporarily the
contract should have expressly stated this. He therefore has no right
to layoff employees temporarily.
The plaintiff cannot argue that he has been constructively dismissed
for he accepted the temporary layoff and its extensions. If he
objected to going for temporary layoff he would be successful in his
petition.
This case is not similar to the case studies that have been advanced
because the plaintiff obliged to terms of temporary layoff validating
the modification of employment agreement. Because the plaintiff was
on temporary layoff, he knew that the assignment agreement did not
apply.
This is evidenced by his notifying the defendant that he was wrongly
being paid Foreign Service allowance. Nothing shows that Waters
bulldozed Glover into accepting temporary layoff. Nothing can show
that the plaintiff was ignorant about the prevailing circumstances.
The plaintiff was therefore not coerced into accepting whatever he
was offered. The plaintiff voluntarily accepted the temporary layoff
and its extension and therefore has no reason to complain that he
was constructively dismissed.
By resigning his position on June 1995 he is not entitled to any
damages since his claim has failed. However, because the plaintiff
was hired specifically for Petronin Project, on fixed term contract, he
is therefore entitled to the value of the remainder of the assignment
agreement.
Assertion by the defendant that court cannot rely on the plaintiff’s
testimony because he is not credible can be far fetched had been
that the plaintiff had not accepted temporary layoff status. The
defendant’s action denied him the opportunity of enjoying the full
benefit of the contract.
Determination of this is not hinged on the plaintiff’s testimony. If it can
be proved that the plaintiff was constructively dismissed, the plaintiff
stands to be paid for damages because the breach has been proven.
Summary of Bravo v. Etobicoke Limited
In Bravo versus Etobicoke Limited (2005) in superior court of justice,
Bravo, a 38 year old welder who has worked for six years and four
months sues his employer for having wrongfully dismissed him. The
plaintiff first worked for the defendant as a general laborer and then
a welder.
He could do both aluminum and steel welding. Up to when he was
dismissed, he had not received any written warning or suspension.
He was dismissed for crimes he is thought to have committed
between Thursday or Friday of 19th and 20th September, 2002.
The plaintiff is uncertain about these dates. In his testimony the
plaintiff says that he failed to report to work after the incidences had
happened because his wife had an appointment. After reporting to
work he had some altercations with Mr. Simones after he had yelled
at him, this prompted him to yell back at him.
Mr. Simones on his part intimated that he saw the plaintiff at 8.20 am
in a position he had initially seen him before. The plaintiff was
supposed to be working by 8.05 and this prompted him to ask the
plaintiff whatever was wrong and what he needed.
The plaintiff is reported to have insulted Mr. Simones and reminded
him that he was not his boss. He denied having insulted the plaintiff
even after he had insulted him. He admitted having raised his voice.
After effortless attempts to talk to Mr. Schiavi by radio, he finally got
to see him.
Mt Schiavi intimated to Simones after taking to the plaintiff that the
plaintiff had taken clothes for cleaning. Schiavi decided not to
proceed with the case because he felt there must have been some
misunderstanding.
The plaintiff again crossed with Schiavi during coffee brake where he
said next time Schiavi messed up with him he will take matters into
his own hands. During the plaintiff’s testimony, he denied ever
threatening Schiavi and said that by taking matters into his own
hands he implied calling the police.
He reiterated that he had initially complained to Mr. Joseph about the
harassment by the Simones brothers. The plaintiff alluded to Mr.
John Brasil the Chief Operating Manager having called him to a
meeting on Wednesday where he was asked about the exchange.
He said that he had gone to change his clothes after spilling water
when Simones attacked and swore at him. In the plaintiff’s testimony,
he said that Brasil was not interested in hearing his problems with
Simones.
Brasil, Joseph and Schiavi said that the plaintiff took either screws or
bolts home for his personal use. Plaintiff held that Simones was
discriminative in the manner he talked to him. The plaintiff maintained
that he was dismissed on Thursday contrary to a popular belief by
Brasil and Joseph that it was indeed a Friday.
Case decision
The letter of his dismissal stated that he was dismissed because of
taking company property without permission and using threatening
and vulgar language. Despite all these the plaintiff was presented
with a six week pay cheque consistent with employment standards
legislation.
The plaintiff did not however ask for neither did he receive a
reference letter hence difficulty with finding another job. The plaintiff
was denied employment insurance benefits by the defendant.
In McKinley v. B.C. Tel (2001), 200 D.L.R. (4th) 385 dishonestly
provided a fertile ground for dismissal for cause. An employee’s
services in a company can be terminated if he is found to have
committed serious fraud or engaged in misappropriation.
The plaintiff’s version of events is not credible since he denies having
taken anything and later admits having taken two screws. Moreover
the plaintiff did not ask for permission to live his work area.
The plaintiff took the bolts for his personal use without express
permission from his supervisor in contravention of the company
policy despite acknowledging that he was familiar with company
policy.
By refusing to be questioned by Mr. Simones it is a clear sign that he
disrespected him. Using foul language shows that he contravened
the company rules which outlaws shouting at your superiors.
However, given that this was the first misconduct by the plaintiff,
summary dismissal was not warranted as it was disproportionate to
the misconduct hence no cause for dismissal. The plaintiff should
have been entitled to reasonable notice.
Because of allegation that the plaintiff took the company property
could be proved and because the defendant failed to initiate
investigation, Mr. Brasil had reasonable grounds for dismissing the
plaintiff.
The issue of bad faith or unfair dealing is dispelled when the
defendant pays the plaintiff six week wages for dismissal.
Summary of Vrana v. Procor Limited
In Vrana versus Procor Limited (2004) in the court of appeal of
Alberta, Vrana claims to have been wrongfully dismissed two days
before the 60th consecutive day of temporary layoff.
The Judge however holds that Vrana was not constructively
dismissed because the code allows employers to layoff their
employees albeit temporarily without terminating the employment
relationship until expiry of 60 days after the lay off.
Claim for wrongful dismissal implies that Vrana had repudiated the
terms of his employment with Procor. Trial judge held that were it that
Vrana had been wrongfully dismissed 10 months would be
appropriate notice period.
Trial judge contend that common law was altered by ss. 62, 63(1)
and 64(1) of the code an interpretation that Vrana dissents.
Case decision
The arguments that have been elicited in this appeal focuses on
relationship between sections 62, 63, and 64 of the code on one hand
and section 3 on the other. The issue cannot be definitively resolved.
This appeal should be allowed on basis of content of Procor’s notice
of temporary layoff based on the fundamental principle of statutory
interpretation. The code preamble only sets forth its legislative
objectives.
The objectives particularly emphasize importance of employment
legislation. Of much importance is the recognition of salutary effect
of open communication between employer and employee and their
responsibility in regards to respect to their rights and obligations.
Section 62 of the code allows for employee temporary layoff without
terminating employment relationship up to 60 day period when the
employment terminates. The employer therefore is under no
obligation to pay the employee any termination due up to when the
60 day period expires.
These provisions do not call for the employees consent. The
employee is left in desperate situation because he is not sure when
the layoff will ever end and cannot search for other sources of income
until the expiry of 60 day period. These provisions put the employees’
life in legal and economic hold.
To be fair to the employee the employer should give a notice of
impending temporary layoff. The notice should contain effective date
of commencement of the layoff and relevant sections of the code that
outline the effect of the layoff.
This will ward off misunderstanding between employers and
employees pursuant to their rights and obligations. In this case a
notice was not given and this cannot be treated as a harmless error.
Situation is then worsened by the mere fact that Procor did not recall
employees who had been layoff hence a cause for suing Procor for
constructive dismissal. The appeal should be allowed on grounds
that Procor never provided the required notice. The damages set out
by the trial judge should therefore be paid to Vrana.
Summary of Turner v. Uniglobe travel
In Turner versus Uniglobe travel (2005) in Court of Queens Bench
Alberta, the Plaintiff-Turner acknowledges having received Policies
and Procedures Manual from Uniglobe travel and accepted it terms
that set out conditions of her employment.
He accepts contents of paragraph 34 in entirety but dissents some of
the provisions of paragraph 35 as not applicable hence not
constituting alterations to his conditions of his employment as she
was not a new employee.
Uniglobe’s Policies and Procedures Manual does not specifically
address issues relating to temporary layoff. The manual does not set
provision of ss. 62, 63, and 64 of the employment code of Alberta.
In Vrana’s case in the Alberta Court of Appeal it was concluded that
no notice was given despite the fact that it should have been given.
It therefore follows that no notice was given to Turner despite the fact
that he ought to have been given.
Turner’s letter to Beth shows that she misrepresented Beth’s letter
that they had indeed terminated her employment. Beth had sole
responsibility of explaining to Turner what was happening. The
defendant had the obligation of writing a second letter to plaintiff to
clear the misunderstanding.
Case decision
The defendant had clear opportunity to make appropriate notice on
receipt of Laundry’s letter dated October 18th. If employee, employer
relationship was to be based on sections 62, 63, and 64 of the code
the defendants should have informed plaintiff about that.
The recall letter also provided opportunity where the defendant
should have given the plaintiff notice of impending temporary layoff.
The word fair and equitable in the preamble of the code, demands
fair and equitable resolution of issues arising from terms and
conditions of employment. There is nothing in the recall letter that
stipulates that there was open and honest communication.
A version of policy manual cannot be a contract hence cannot be
relied. The defendant did not give the plaintiff 8 weeks notice hence
repudiation of contract.
Comparison of the cases based on decision
In Turner v. Uniglobe Travel just like in Vrana v. Procor Limited the
court finds that the defendants subjected the plaintiffs to temporary
layoff without due notice as stipulated in the preamble of the code
and therefore awarded the plaintiff damages.
However, in Bravo versus Etobicoke Limited there is reasonable
ground for dismissal of the plaintiff as he is found to have engaged
in theft of company property and use of vulgar language against the
company officers in breach of the company policies.
Nevertheless, his instantaneous dismissal was unwarranted as it is
his first time to do such thing. He should have been given notice
instead of immediate dismissal. However, failure by the defendant to
initiate investigation was so grave.
In Glover v. Lavalin Inc., the plaintiff was not awarded damages
because by refusing to sign for extension of temporary layoff he was
aware of what was going on hence stood dismissed. All the four
cases touch on how employees who are under temporary layoff
should be treated.
Lessons learnt as employee and employer
Issues pertaining to contract should be looked at critically because
they can make an employee or employer suffer untold losses.
Parties should not just take to signing before knowing what they are
signing against. If some issues are not clear it is advisable that
lawyers services are involved.
While drafting contracts, employers should ensure that they conform
to existing codes. Issues relating to dismissal of employees,
termination of contracts, and laying off of workers should be treated
with caution as this can make a company pay colossal amounts of
money in damages to affected employees.
Constant communication between employer and employee is also
very healthy.
Advices Given To both “Employee and Employer as HR
Manager”
An employee should understand what an employment contract
requires of him before signing the dotted lines because after signing
the contract it is expected of him or her to strictly follow the dictates
of the contract.
Employees should also be conversant with the legislations that
surround contractual laws because ignorance is not defense against
law. They should extensively interrogate the content of the contract
so that their actions are consistent with it. They are also supposed to
know their rights and responsibilities.
Employers should also make it a point of respecting the contract and
should know their rights and responsibilities against those of the
employees.
No employee should be dismissed when their dismissal is not
premised in existing law as this may cost a company a fortune in
terms of legal suits by employees. When an employee has to go for
temporary layoff they have to be given due notice as premised in
contractual laws and codes.
Reference List
Bravo v. Etobicoke Limited, CanLII 18276 (ON SC) (2005)
Glover v. Lavalin Inc., ABQB 752 (1998)
Turner v. Uniglobe travel, ABQB 513 (2005)
Vrana v. Procor Limited, ABCA 126 (2004)
