Employee induced to leave his employment and terminated six months later awarded six months’ pay

November 9, 2018 De Bousquet PC Barristers and Solicitors Employee Relations, Employment/Labour Standards, Human Resources, Notice, Damages and Settlements, Payroll, Recruiting and Hiring, Wages and Compensation

In Greenlees v. Starline Windows Ltd., [2018] B.C.J. No. 3074, the British Columbia Supreme Court awarded an employee six months’ notice after working for only six months.

Prior to working for Starline Windows, Mr. Greenlees worked for Trevor Jarvis Contracting, earning roughly $100,000 per year as a sales representative. In January 2017, Mr. Greenlees received a cold-call from a sales manager at Starline Windows to discuss a job opportunity. Over the course of two meetings, Mr. Greenlees was offered a position working primarily in new residential projects with occasional work in renovation construction projects. The Starline representative estimated potential income in the range of $100,000 per year, including commissions, and that an income in excess of $100,000 per year was a realistic expectation. The employee was also promised that his commission rate would start at 3% and rise to 6% after three months. The employee accepted the position based on these representations made by Starline.

Within the first two weeks of employment, Mr. Greenlees was assigned exclusively to less lucrative renovation projects. At the end of his probationary period, the employee was neither restored to new construction sales nor was his commission rate increased to 6% as promised. Mr. Greenlees raised these concerns with the new sales manager, who advised the employee that the position for new construction sales had been filled and that he would remain in the renovation construction department until his termination. Upon termination, Starline paid the employee the equivalent of one week’s wages and commission, and refused to provide a letter of reference.

After reviewing the factors that determine the reasonableness of a notice period, counsel agreed that a two to three month notice period is a reasonable ‘baseline’ for this type of case as established in Saalfeld v Absolute Software Corp., 2008 BCSC 760. In Saalfeld, a nine-month employee was awarded five months’ notice, in part because it took the plaintiff nine months, after diligent attempts, to find alternate employment. The Court then contemplated the additional notice required on account of the inducement and stated:

“This is not a case in which the employer and prospective employee were equally eager at the outset. Mr. Greenlees had to be persuaded. He recognized that the forecasts were contingent, that they did not amount to promises or guarantees. Nevertheless, they were material and important to Mr. Greenlees’ decision. By them, he was persuaded to take the job. I conclude that Mr. Parkinson’s statements to Mr. Greenlees carry some weight as inducements affecting the notice period.”

Greenlees v. Starline Windows Ltd. demonstrates the willingness of courts to award longer notice periods to short-term employees, particularly when the conduct of the employer induces the employee to leave his previous employment. Employers should be aware of the recruitment tactics being used by their managers and employees should carefully document any promise made to induce them into leaving existing employment.

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De Bousquet PC Barristers and Solicitors

Civil Litigation Lawyers at De Bousquet PC Barristers and Solicitors

De Bousquet law offers experienced counsel and representation in multiple aspects of employment law, labour relations, commercial law and civil litigation. Jean-Alexandre De Bousquet, founder of the firm, interned for the Canadian Centre for International Justice, worked for an Ottawa law firm and pursued a career with the Attorney General of Ontario. In 2014, Jean-Alexandre was named one of Ontario's "leading experts" in human rights law by Legal Action Magazine. Jean-Alexandre handles cases related to wrongful dismissal, workplace discrimination, breach of contract, fraud and commercial disputes. Jean-Alexandre is fully fluent in French and English and represents clients before courts and tribunals using both official languages.Before the practice of law, Jean-Alexandre was a journalist at the CBC for 3 years. Other notable achievements include employment with the Canada Research Chair on Native Peoples and Legal Diversity, the Canadian Research Chair on Metis Identity and the Urban League, a U.S. civil rights organization. Jean-Alexandre has also published articles in prominent academic journals and presented papers at international conferences in Canada and the U.S.Read more here