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 30^th 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 31^st 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 5^th September 1994.

Glover reported to work in Trinidad on 5^th September, 1994. On 7^th 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 30^th 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 6^th 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 5^th 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 19^th 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 22^nd 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 22^nd 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 22^nd 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 19^th April 1995.

Waters again asked Glover on 28^th 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 30^th 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 30^th 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 31^st 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 19^th and 20^th 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 60^th 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 18^th. 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)