Small Claims Court

SCCH  259755

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA

Cite as Berglund v. Furnishing International Ltd., 2006 NSSM 5

Between:                                              

shawn berglund

CLAIMANT

-    and –

furnishing international ltd. No. 259755

DEFENDANT

COURT SUMMARY: Employment contract and employee held to terms of contract: Employee quit his employ without determining or asking his employer if his job changed or whether he was no longer working for the Defendant. Insufficient evidence those terms of employment changed.

Adjudicator:   David T.R. Parker

Heard:                         February 9, 2006

Decision:        February 17, 2006

Counsel:         Claimant was self-represented.

Defendant appeared and was represented by Counsel Patrick J. Eagan.

The Claimant entered into an employment contract with a numbered Nova Scotian company. The agreement is dated July 2005. Counsel for the Defendant confirmed that the numbered company is now the Defendant named in the suit. The Defendant owned a furniture store business.

 The Claimant was paid from July to November 18, the latter date being the date the store actually opened. Prior to opening the store the Claimant worked at the store getting it ready for its grand opening.

 The Claimant worked in the store in a managerial position and worked November 19, 21, 23, 24, 25, 26, 28, and on November 29 when he came to work one of the employees told the Claimant that she heard he was no longer manager. The Claimant then proceeded into the vice-president’s office and said he quit and walked out.

No one had told the Claimant he was fired or that his job description had changed other than the employee Ms. Johnson who mentioned the latter.

The Claimant’s claim is made up as follows

8 days of work @$96.15  =  $769.20

5% of $11,804                      =   $590.20 representing commission on his personal sales

.5% of $123,364                =  $616.82 representing commission on total sales for November

Vacation pay                          =    $38.46

Punitive damages                =  $100.00

Interest and costs and witness fees

The Defendant has provided the Claimant with a cheque for the pay period 19th of November until the Claimant left the store. The amount of the cheque was $689.45 made up of salary $576.00 + commission $49.95 + vacation pay $63.50 less statutory deductions of $131.72 leaving a net of $557.73. The Claimant currently has this cheque which I assume is stale dated.

There is no doubt in my mind that the Claimant worked long and difficult hours in getting this Defendant’s store up and running  and as the Defendant gave no evidence through direct examination there is nothing to contradict this.

 The written contract will determine what the obligations of the Defendant and the Claimant are in this case.

The agreement among other things states that the Claimant shall give the Defendant 1 weeks notice if the Claimant wishes to terminate his employment. No notice was given in this case the agreement also states that no notice is necessary if there is cause or any material breach of any terms and conditions of the agreement by the Defendant.

The Claimant assumed he was removed as store manager; however, there is no evidence from the Claimant that he was told by the Defendant that his role had changed.

The Defendant is however not looking or asking for 1 week’s salary from the Claimant.

With respect to the commission the Claimant presented evidence that he sold $11,804 .00 and the contract allows for 5% of monthly sales and I shall allow $590.20.

With respect to total sales of the store the Claimant said the Vice President received 1% of $123,000.00 and the Claimant should receive .5% of $123,000.00 The witness for the Claimant  said the Vice President  received 1% of written orders and orders sold .The Defendant’s Counsel showed in Cross –examination  that orders sold for November were $36,995.00. I do not know what the agreement is with the Vice President but the Claimant’s agreement is for .5% commission on total monthly sales and I take that to mean goods sold not orders written  in other words  .5% of $36,995.00 = $184.98.

The amount determined by the Defendant on the last pay stub was reasonably close if not exact and I will allow that for the Claimant days worked in November 2005. I shall not award interest as the cheque was never cashed and the only evidence provided regarding sales were either provided by the Defendant  and there is a great discrepancy between the Claimant’s figure and the Defendant plus the Claimant’s claim  was not particularize and certainly what was claimed was far greater than the reality of the situation. .This is not a case for general damages as it was the Claimant who quit.

IT IS THEREFORE ORDERED THAT the Defendant pay to the Claimant the following sums:

$          557.73            Net Pay – November

$          590.20            Commission

$          184.98            Commission

$            80.00            Court Costs

$      1,412.91            Total

DATED at Halifax Nova Scotia, this 17^th day of February, A.D., 2006.

David T.R. Parker