J. S.C. 86/2004 2005 SKPC 55 IN THE PROVINCIAL COURT OF SASKATCHEWAN (SMALL CLAIMS COURT) AT SWIFT CURRENT, SASKATCHEWAN Between: BRYN STUMBORG Plaintiff -and- AQUATAIN CONSULTING INC. Ms. Bryn Stumborg For the Plaintiff Mr. Warren Hope For the Defendant April 28, 2005 L.A. Matsalla, P.C.J. JUDGMENT [1] The plaintiff student argues that she was unjustly dismissed and so she sues the defendant business for wages that she would have earned had she worked to the end of the term of her employment. The employer argues that the plaintiff was dismissed for cause. [2] The defendant (“Aquatain”) operates business in Swift Current that does accounting work and that prepares income tax returns for its clients. The business also sells investments. Mr. Hope, the president and director of the defendant company and the manager of the business, advertised for two positions in the April 17, 2004 edition of the local newspaper. The advertisement offered two positions, namely: 1. job for “summer student” for the period extending from May to August 31, 2004. The ad stated that “(e)ducation in business or finance would be preferred.” and 2. position as receptionist for an undetermined period. “certificate in office automation or administration” was required. On April 22nd, the plaintiff arranged to have an application for the position of summer student delivered to the defendant business. In the application she identified herself as second year Bachelor Arts student with major in history and she set out her experience. For the most part her experience consisted of volunteer work with very limited work experience. [3] On April 29th, Mr. Hope interviewed the plaintiff. He gave her 15 minute test that involved adding numbers on an Income tax return. At the end of the test, according to the plaintiff, she was told that she would be good for the job and he hired her telling her that she would start on May 10th. Apparently there was no discussion as to her lack of business experience. It is common ground that her salary was to be $9.00 per hour for hour day over day week. [4] According to the plaintiff, she received days of training as receptionist. It appears that the receptionist position, as advertised, had not been filled. She was required to assume both positions even though she did not possess the required certificates for the position. No job description was provided to her. [5] She testified that on June 15th, Mr. Hope had told her that she had been negligent because she had not processed certain documents. Ms. Stumborg says that the previous receptionist that had trained her advised her to ignore the documents in question. In any event, she says that she tried to and did improve despite minimal supervision. On July 7th she was advised to train another person who, she was told, was to commence work at the end of the summer. Of some note is the fact that the defendant dismissed the plaintiff days later. The date coincides with the end of the plaintiff’s term of employment. On July 12th, at 2:00 p.m., she testified that Mr. Hope informed her that her employment would be terminated. When she asked the reason for the termination she was told that her work had not improved sufficiently. Although Mr. Hope told her that her social skills were lacking, Ms. Stumborg claims that none of the shortcomings had been brought to her attention. Nonetheless, she left the work place at 4:30 p.m. She told the Court that she then proceeded to financial institution to change signing authority and that she updated list of things that had to be done at work. It is clear that no notice of termination was provided to her nor was she offered any payment in lieu of notice. The plaintiff suggests that she would have received holiday pay valued at $149.56 had she worked to the end of the term. [6] The plaintiff sought other employment. While no evidence was specifically provided as to the details of that employment the defendant does not take issue with the plaintiff’s suggestion in her Statement of Claim that she earned the sum of $657.83 from that employment. [7] Evidence produced by the defendant consisted of persons who had worked with the plaintiff. One of these individuals was hired after the plaintiff was let go and she testified that certain documents had been misfiled, that certain other information had not been provided to parties as required and that some confidential information had been released. cannot tell if these difficulties can be directly attributable to the plaintiff or whether someone else may have been responsible. Another witness testified that the plaintiff had not been friendly to her and yet another employee senior accounting technician responsible for filing personal and corporate returns and for completing government applications, testified that she had been responsible for training the plaintiff. Ms. Stumborg’s work had improved although the witness told the Court that she had some difficulty cross-referencing spread sheets that covered year period. [8] Mr. Hope testified. He said that he had concerns about her telephone etiquette with clients but that he was reluctant to approach her. He claimed that he spoke to her about her work on occasions. On one occasion, on date that he could not recall, he talked to her about incomplete work that had been on her desk. The plaintiff’s work improved as result. He said that he believed that her lack of detail would cost the business money and so, on July 12th, he advised her that her employment had ended. She asked to stay but he refused. [9] The plaintiff argues that she had been hired to term contract extending from May 10th to August 31, 2004. She goes on to say that her contract of employment was unjustly terminated and so she is entitled to the wages that she would have earned over the term less any income received as result of the mitigation of her damages. [10] The defendant argues that the plaintiff was dismissed for just cause. The company also argues that the plaintiff was only entitled to the nominal notice set out in section 43 The Labour Standards Act, R.S.S. 1978, c. L-1 (the “Act”). However, there is no doubt that the defendant did not provide the plaintiff with any notice that her employment would be terminated and so this is case of summary dismissal. [11] The issue in this case is whether the defendant employer had just cause to dismiss the plaintiff employee and, if not, the measure of damages to which the plaintiff would be entitled. [12] There is no doubt that the relationship of employer employee (or, as the authorities have earlier described it, of master and servant) arose in this case and so the Ontario Court of Appeal in Carter v. Bell Sons, 1936 CanLII 75 (ON CA), [1936] D.L.R. 438 at 439 has said, In the case of master and servant there is implied in the contract of hiring an obligation to give reasonable notice of an intention to terminate the arrangement.. This is peculiar incident of the relationship of master and servant based largely upon custom. However there is also no doubt that the plaintiff was dismissed for what the defendant considered “just cause” and not for reasons relating to discipline. “Just cause” in such circumstances can be established if the requirements identified by Klebuc J. in Riehl v. Westfair Foods Ltd. (1995), 1995 CanLII 6086 (SK QB), 132 Sask. R. 161, referring to Brown and Beatty Canadian Labour Arbitration, 2nd ed. (Toronto: Canada Law Book 1988) at 412 have been met, the learned authors said, Generally, it has been said that to substantiate non-disciplinary termination in such circumstances, the employer must establish the level of job performance it required, that such standard was communicated to the employee, that it gave suitable instruction and supervision to enable the employee to meet the standard, that the employee was incapable of meeting the standard of that job or other positions presumably within her competence, and that it warned the employee that failure to meet the standard would result in her dismissal... [13] In this case the plaintiff was dismissed summarily, that is, without notice. Williamson, J. in Hildebrandt v. Wakaw Lake Regional Park Authority (1999), 1999 CanLII 12447 (SK QB), 175 Sask. R. 207 said this about such circumstance, Summary dismissal is warranted for serious misconduct or breaches of fundamental nature that contravene clear and unequivocal policies, procedures or instructions well known to the employee. Where dismissal is for repeated instances of incompetence or unsatisfactory job performance the employers must show that: (1) it has established reasonable objective standards of performance; (2) the employee has failed to meet those standards; (3) the employee has had warning that he has failed to meet those standards and that the employee’s position with the employer will be in jeopardy if he continues to fail to meet those standards; and (4) that reasonable time was afforded to correct the situation. [14] Klebuc, J. in Riehl at paragraph 16 pointed out that the employer must prove that just cause existed on the balance of probabilities. Lord Denning in Miller v. Minister of Pensions, [1947] All E.R. 372 at 374 described the onus as it must be “more probable than not” that the burden has been discharged. It is clear that the conduct complained of must be more than mere dissatisfaction with the employee’s performance [see Belliveau v. Westfair Foods Ltd. (1996), 1996 CanLII 6684 (SK QB), 151 Sask. R. 49 at para 21]. [15] Before embarking any further on the analysis of the facts in this case must determine whether the contract of employment was for an indefinite term or for fixed contractual period. The Court in Jordison v. Caledonian Curling Co-operative Ltd. (2000), 190 Sask. R. 132 was required to decide the question in case in which an icemaker who had worked for company that operated curling rink commenced proceedings against his employer. There are many indicia that are helpful to resolve the matter however, in this case, given the specific reference to term of employment in newspaper advertisement and that there was no indication that the position would be available to the plaintiff during any future summer periods, have no difficulty in concluding that the contract was for the term May 10 to August 31, 2004. must now determine whether the employer had just cause to dismiss the employee. [16] It is clear that the defendant advertised for two employees however, it decided not to fill the second position and reception duties were assigned to the plaintiff. Furthermore the defendant, despite advertising for the position as one for which “(e)ducation in business or finance would be preferred”, hired student who was history major and who had only marginal business experience. She was also assigned work as receptionist despite her lack of credentials. accept her evidence that she received only nominal training as receptionist and, it would appear, very little training if any, in financial matters. Furthermore, her evidence that as late as July 7th, she was even asked to train another employee, was not contradicted and so it could hardly be said that she was not competent employee. [17] As far as can tell from the evidence, Mr. Hope spoke to her on three occasions about her work and, by his own admission, Ms. Stumborg made an effort to improve. At no time was she advised in any detail what was expected of her and that a failure to meet a particular standard could result in the determination of her employment. It appears that Mr. Hope attributed the misfiling of paper in an income tax return to the plaintiff and he decided to summarily dismiss her. I am satisfied that, in the circumstances, it can not be said that it is “more probable than not” that the plaintiff was guilty of serious misconduct or a breach of such a fundamental nature respecting office policies - policies that may not have been made known to her, that there was just cause for her dismissal. Therefore, the defendant was dismissed without just cause. [18] It is well established law that section 43 of the Act provides minimum notice period and does not prevent an employee from seeking remedy at common law for breach of contract (see section 73 of the Act). [19] have found that the contract of employment was term contract extending from May 10th to August 31, 2004. The plaintiff was dismissed on July 12th. But for her dismissal, she would likely have worked for the rest of July (14 days) and for the month of August (22 days). Subsequent to the end of her employment she sought and she obtained work for which she was paid $657.83. The onus is on the employer to establish that the employee failed to mitigate her loss (see Red Deer College v. Michaels and Finn, 1975 CanLII 15 (SCC), [1975] W.W.R. 575 (S.C.C.) at pp 580-81). In this case the plaintiff made reasonable effort to seek and maintain employment. The plaintiff would have received employment income to the end of August, 2004 in the amount of $2,592.00 and she would have received holiday pay in the amount of $149.56. She earned the sum of $657.83 from other employment during that time period. Therefore she is entitled to damages in the amount of $2,083.73. Certificate of Judgment will issue in her favour in that amount and for costs in the amount of $20.00. L. A. Matsalla, P.C.J.
The plaintiff student argues that she was unjustly dismissed and so sues the defendant business for wages that she would have earned had she worked to the end of the term of her employment. The employer argues that the plaintiff was dismissed for cause. HELD: 1) The employer spoke to the employee on three occasions about her work and by his own admission, the employee made an effort to improve. At no time was she advised in any detail what was expected of her and that a failure to meet a particular standard could result in the termination of her employment. It would appear that the employer attributed the misfiling of a paper in an income tax return to the plaintiff and he decided to summarily dismiss her. In the circumstance, it can not be said that it is more probable than not that the plaintiff was guilty of serious misconduct or a breach of a fundamental nature respecting office policies, policies that may not have been made known to her, that there was just cause for her dismissal. Therefore the defendant was dismissed without just cause.  2) The contract of employment was a term contract extending from May to August 31, 2004. The plaintiff was dismissed on July 12. But for her dismissal, she would have worked for the rest of July and for the month of August or 36 days. 3) In this case the plaintiff made reasonable effort to seek and maintain employment. She earned $657.83. 4) The plaintiff is awarded judgment in the amount of $2,083.73.