SMall Claims COURT OF Nova Scotia
Citation: Carew v. Wilson Fuel Co. Limited, 2019 NSSM 28
Date: 2019-04-08
Docket: Sydney, No. 481529
Registry: Halifax
Between:
Jenna Carew
Claimant
v.
Wilson Fuel Co. Limited
Defendant
Adjudicator: Patricia Fricker-Bates
Heard: February 6th, 2019
Decision: April 8th, 2019
Appearances: Jenna Carew, Claimant, represented by Robert F. Risk,
Ryan Iannetti Law Office;
Wilson Fuel Co. Limited, Defendant, represented by
Liam G.P. Gillis, Sampson McPhee
BY THE COURT:
[1] The Claimant Jenna Carew filed a Notice of Claim dated October 18, 2018, with the Small Claims Court on October 18, 2018, which included a 16-paragraph Statement of Claim setting out the particulars of her claim. According to the Statement of Claim (at paras 4, 15-16):
4. Ms. Carew ‘s period of employment with the Defendant began on or about October 13, 2016 and continued until she was abruptly dismissed without notice on October 25, 2017.
…
15.Ms. Carew repeats the foregoing and states that she has been wrongfully dismissed from her employment with the Defendant.
16: Ms. Carew therefore claims the following relief from the Defendant:
(a) Damages for wages in lieu of notice;
(b) General damages as provided for in the Act;
(c) Lost wages; including the bonus payment;
(d) Pre-judgement Interest;
(e) Costs of this Application; and
(f) Such further and other relief as this Honourable Court deems just to award.
The Claimant is seeking approximately $10,000.00 from the Defendant company. The Claimant testified on her own behalf.
[2] In response, the Defendant Wilson Fuels filed a Defence/Counterclaim dated December 20, 2018, with the Small Claims Court on December 21, 2018, which included an 11-paragraph Statement of Defence. Except for paragraphs 1-to-3 of the Claimant’s Statement of Claim, the Defendant denies all other paragraphs of the Statement of Claim. The Defendant maintains (at paras 3-4, 7-8, 11) the following:
STATEMENT OF DEFENCE
…
3. The Defendant hired the Plaintiff as a Manager of its Sydney Mines location, site 300. The effective start date of the Plaintiff’s employment was October 17, 2016. The Plaintiff was hired in accordance with a letter of offer, dated October 6, 2016, signed by the Plaintiff on October 13, 2016 (the “Employment Contract”).
4. On October 25, 2017, the Plaintiff was terminated without cause from her employment with the Defendant. The Plaintiff was provided with one week pay-in-lieu of notice pursuant to the Nova Scotia Labour Standards Code, RSNS 1989, c. 246. She was also paid any outstanding hours and accrued vacation pay.
…
7. The Defendant relies upon the Release as a complete defense to this claim. In the alternative, the Defendant relies upon the Employment Contract, which provides that the Defendant may terminate her employment, at any time, without just cause, by provided (sic) her with pay in lieu of notice in accordance with the Nova Scotia Labour Standards Code. The Defendant further denies that the Plaintiff was entitled to any ‘bonus’ payments.
8. In the further alternative, the Defendant states that it provided the Plaintiff with pay in lieu of notice in accordance with both its contractual, statutory and common law obligations.
…
10. The Defendant pleads and relies upon the Labour Standards Code, RSNS c.246, as amended.
11. The Defendant requests that this Honourable Court dismiss the Plaintiff’s action with costs.
Elaine Moore, Area Supervisor, and Nancy Lee Clements, Manager, Wilson Fuels—Bras d’Or Esso, testified on behalf of the Defendant.
[3] The following documents were jointly tendered as Exhibit No. 1 by the Claimant and the Defendant at the commencement of the hearing on February 6th, 2019: (1) Résumé of Jenn Carew; (2) Offer of Employment letter from the Defendant to the Claimant dated October 6, 2016, plus copy of the Claimant’s handwritten acceptance of same dated October 13, 2016; (3) Defendant’s Store Manager Bonus Structure updated to December 15, 2016; (4) Performance Review of the Claimant by the Defendant dated July 1st, 2017; (5) Photo of Claimant’s chequing account dated June 9, 2017, showing a $250.00 deposit; (6) Termination of Employment letter from the Defendant to the Claimant dated October 25, 2017; (7) email from Jenna Carew to the Defendant dated October 27, 2017, at 1:02 p.m.; and an email from Rob Risk, counsel for the Claimant, to the Claimant and the Defendant dated October 27, 2017, at 1:55 p.m.
Review of the Evidence
[4] After conducting interviews, the Defendant offered the Claimant the position of Manager at their Sydney Mines location by letter dated October 6, 2016. The two-page Offer of Employment set out in that letter, provided a start date of October 17, 2016. The following numbered and underlined headings are found in the Offer of Employment: 1. Duties and Responsibilities; 2. Compensation; 3. Wilson Policy and Procedures; 4. Non-Disclosure & Non-Solicitation; and 5. Termination of Employment.
[5] The following is the text of the Termination of Employment section:
5. Termination of Employment
It is always difficult to consider termination upon the commencement of a new employment relationship; however, we believe that it is important that you understand and agree to your entitlements upon the termination of your employment.
a. If you decide to terminate your employment with Wilsons, you may do so at any time upon giving Wilsons notice in accordance with the Nova Scotia Labour Standards Code.
b. Wilson may terminate your employment, at any time, for just cause without providing notice or pay-in-lieu notice.
c. Wilson’s may terminate your employment, at any time, without just cause, by providing you with working notice or pay-in-lieu of notice in accordance with the NS Labour Standards Code.
d. Upon termination of your employment for any reason, you will deliver to Wilsons all company property which are in your possession and which relate in any way to Wilson Fuel Co. Limited business.
We look forward to having you as part of our team.
If this offer is acceptable to you, please sign one of these copies at the bottom and return by email to emoore@wilsons.ca and shannon@wilsons.ca.
Sincerely,
Eleanor Moore Supervisor
cc Shelley Hannam, HR/Payroll Admin
| EMPLOYEE’S AGREEMENT I have read, understood and agree with the terms and conditions of employment set out in this offer of employment and its schedules. I have had a reasonable opportunity to consider this agreement and to seek independent legal advice. |
_____________________________ _________________________
Accepted by _______________ Date
[7] The Claimant testified that she did not read fully the Termination of Employment clause of the Letter of Offer dated October 6, 2016. She stated that she was excited and was very quick to reply. Under cross-examination, the Claimant acknowledged that she did give the Termination of Employment clause a “brief skim … a quick read.” The Claimant maintained that there was no discussion with Supervisor Eleanor Moore about paragraph 5 “Termination of Employment” of the letter of offer or about termination procedures.
[8] The Claimant testified that based on her Performance Review of July 1st, 2017, she was under the impression that she was a valued employee. She was responsible for five to eight staff excluding herself. She felt that her store was doing well albeit she was aware that her staff had failed a few Mystery Shopper episodes. Under cross-examination she acknowledged that two or three employees resigned because they were dissatisfied with her management and how she was doing her job.
[9] The Claimant testified that the job was demanding and, at one point, she advised Supervisor Eleanor Moore to look for someone else. The Defendant counter offered with a salary increase from $31,000 to $34,000 annually in April 2017; and the Claimant accepted.
[10] On October 25, 2017, the Claimant went to work as usual. Nancy Clements, Manager of Wilson Fuels at the Bras D’or Esso site arrived unexpectedly ahead of Eleanor Moore, Supervisor, who was expected in anticipation of the monthly inventory. According to the Claimant, Ms. Moore asked the Claimant to go out back with her to the stock room. Ms. Moore apologized and advised the Claimant that she was being let go. Nancy Clements also was present when the termination happened. Ms. Moore handed the Claimant a three-page Termination of Employment letter dated October 25, 2017. It states (at pg. 1): “Although we are not alleging just cause, the reason underlying the termination of employment is your lack of fit for the organization.” The last page of that letter contained an “Acceptance and Release” clause:
| Acceptance & Release I have read and understood this letter. I accept the payments set out herein and release and forever settle any and all complaints, causes of action, demands or claims of any kind that I may have, statutory or otherwise (including claims under the Nova Scotia Labour Standards Code, the Nova Scotia Human Rights Act, the common law and any other applicable labour and employment legislation), against Wilson Fuel Co. Limited (“Wilson Fuels”), its subsidiaries and affiliates arising from or relating to my employment with Wilson Fuels/Cape D’or Holdings of any future claims which I might bring stemming from my employment or the termination thereof _______________________ Date _______________________ Jenn Carew |
The Claimant maintains that she was so embarrassed, overwhelmed, and flabbergasted, that she signed the “Acceptance and Release” page in the presence of Eleanor Moore and Nancy Clements On October 25, 2017 (Exhibit 1, No. 6). She testified that she regretted not focusing more and regretted signing the dismissal letter because she realized she wasn’t in her right state of mind, that she was overwhelmed and nothing was sinking in. However, under cross-examination, the Claimant acknowledged that she didn’t speak of being overwhelmed to Ms. Moore. She stated that there were no threats, just that she was alone and they—Ms. Moore and Ms. Clements—were on the other side. The Claimant did ask Ms. Moore for a reference and testified under cross-examination that the meeting ended in hugs.
[11] The Claimant then called her husband and went home only to return a short time later to the Defendant’s premises for papers she had forgotten. She then went to the law office of Ryan Iannetti to see a lawyer.
[12] In cross-examination, the Claimant was referred to the Termination of Employment letter and acknowledged that, according to the letter, she had approximately one week—from October 25 to November 1, 2017—to consider the contents of that letter before signing. She was not compelled to sign the Acceptance and Release schedule to the letter on October 25, 2016. The Complainant testified that she couldn’t recall if Ms. Moore had referred to the week’s grace period, but conceded that it’s possible that Ms. Moore did so.
[13] The Claimant testified that she received Employment Insurance for a period just shy of one year into 2018, even while working part-time at Walmart. She looked for other jobs after being let go by the Defendant but was not getting many calls back. She agreed under cross-examination that the position with the Defendant was a “step up” for her, and that following her dismissal, she was looking for managerial positions—it was her ultimate goal. However, the Complainant chronicled her efforts to find work outside of the managerial field.
[14] The Store Manager Bonus Structure (Exhibit 1, No. 3) stipulates that a “Store Manager can qualify for 20% of their wage for a bonus. Manager (employed at least 1 year at December 31st and currently employed—as per calculation).” The Claimant testified that she was anticipating a good bonus—maybe not 20% but a high percentage nonetheless.
[15] Eleanor Moore testified for the Defendant. She indicated that she is the Area Supervisor for Wilson Fuels with responsibility for eight gas stations. She stated that she reports to Doug MacDonald, Director of Operations for the Atlantic.
[16] Ms. Moore indicated that she was involved in the hiring of the Claimant. She noted that the Claimant caught on quickly and was easy to get along with. She noted that the Claimant was trained by Nancy Clements while Ms. Moore, herself, would see the Claimant twice per month for managers’ meetings and inventory.
[17] Ms. Moore testified that it was brought to her attention by some of the employees, including the assistant manager, that they couldn’t work with the Claimant. Some employees felt bullied and harassed and the assistant manager stepped down due, in part, to the Claimant’s habit of shutting off her cell phone over the weekends, leaving after-hours calls to the assistant manager. Ms. Moore acknowledged that she didn’t discuss these issues with the Claimant. She maintained that the Claimant was not fired; rather, she was given a Letter of Termination as she wasn’t a fit for the company.
[18] Ms. Moore testified that she discussed the situation with the Defendant’s HR Department and the letter of termination was provided by that department. She asked Nancy Clements to attend the meeting with the Claimant where the Letter of Termination would be presented. During that meeting, she testified that she told the Claimant that she didn’t have to sign the letter then but could bring it back later. Ms. Moore indicated that she told the Claimant that the sooner she signed the letter, the sooner she would get her money comprising (1) one week’s pay in lieu of notice pursuant to the Nova Scotia Labour Standards Code; (2) a further two-weeks’ pay in lieu of notice, subject to statutory deductions, upon return of an original signed copy of the letter on or before November 1, 2017; and (3) outstanding hours and accrued vacation totaling $1350.00, subject to statutory deductions.
[19] Ms. Moore testified that the Claimant skimmed through the letter and signed it, asked if she could keep the Wilson Fuels jacket and hugged herself and Ms. Clements. Ms. Moore indicated that she did not read the Letter of Termination to the Claimant but indicated to the Claimant that she could take time to read the letter, and that if she did sign it, she would get an additional two weeks’ pay (see Exhibit 1, No. 6, para. 2). Despite the Claimant’s request via email on October 27, 2017, that the two weeks’ pay in lieu of notice not be deposited to her bank account on November 3, 2017 (Exhibit 1, No. 7), the deposit was made as per the terms of the Letter of Termination. In making that request, the Claimant wrote: “Robert F. Risk will be contacting you on my behalf in the near future.”
[20] Concerning the Defendant company’s managerial bonus structure, Ms. Moore indicated that the individual would have to be employed at the time bonuses were awarded; and that bonuses were given at the discretion of the Atlantic Manager. She noted that at the time of the Claimant’s dismissal, bonuses hadn’t been paid out. She testified under cross-examination that had the Claimant been employed in December 2017, she would probably have gotten an 8-10% manager’s bonus despite the employee issues.
[21] Ms. Moore also identified a separate bonus of $250.00 payable to all employees depending on the financial gain of the company for that year (Exhibit 1, No. 5).
[22] Ms. Moore testified under re-direct examination that she was familiar with termination with cause as it would involve the need to have a reason for letting someone go. The employee would get nothing. She emphasized that the Claimant was not fired, but terminated without cause.
[23] Nancy Lee Clements also testified for the Defendant. She testified that Ms. Moore asked her to sit in on the meeting with the Claimant. She testified that there was no kerfuffle, that Ms. Moore explained to the Claimant that she wasn’t a good fit for the company, that the Claimant could read the Letter of Termination and take it home but that if she signed it, the paper work would be done quicker. According to Ms. Clements, Ms. Moore was not upset or angry. She noted that the Claimant did not ask any questions, that she looked like a deer in the headlights and caught off guard. Ms. Clements testified that she saw the Claimant about one hour later after the Claimant returned to the Defendant’s premises wanting to know why she was fired. Ms. Clements testified that the monthly management meetings did not concern discussions about personnel but rather discussions about whether stores were meeting their targets or not. It was her recollection that the meeting terminating the Claimant’s employment was approximately 10 minutes.
DECISION OF THE COURT
[24] The Claimant is alleging that she was wrongfully dismissed from her managerial position with the Defendant. The Defendant maintains that the Claimant was terminated without cause in keeping with section 5 of the two-page Offer of Employment letter dated October 6, 2016.
5. Termination of Employment
It is always difficult to consider termination upon the commencement of a new employment relationship; however, we believe that is important that you understand and agree to your entitlements upon the termination of your employment.
a. If you decide to terminate your employment with Wilsons, you may do so at any time upon giving Wilsons notice in accordance with the Nova Scotia Labour Standards Code.
b. Wilson may terminate your employment, at any time, for just cause without providing notice or pay-in-lieu notice.
c. Wilson’s may terminate your employment, at any time, without just cause, by providing you with working notice or pay-in-lieu of notice in accordance with the NS Labour Standards Code.
d. Upon termination of your employment for any reason, you will deliver to Wilsons all company property which are in your possession and which relate in any way to Wilson Fuel Co. Limited business.
Clearly, the Letter of Offer contained specifics as to the termination of employment, including termination, at any time, without just cause.
[25] The Claimant testified that she did not read Section 5 of the Letter of Offer fully, that she was excited and quick to reply. Similarly, upon receiving the Letter of Termination dated October 25, 2017, the Complainant again testified that she gave the “Acceptance and Release” clause of that letter a brief skim, that she was so thrown off that she just signed and dated it.
[26] The Claimant’s Résumé (Exhibit 1, No. 1) demonstrates that the Claimant has had a varied work background, including that of Store Manager for Bentley Leathers Inc. at that company’s North Sydney and Sydney, Nova Scotia, locations between February 2015 and July 2016. One of her responsibilities as store manager for Bentley’s was “conducting interviews and completing hiring and termination information, following and enforcing company procedures.” Unfortunately, the North Sydney location closed down and the Claimant found herself out of work. By October 25, 2016, the Claimant had applied for and been hired to a managerial position with the Defendant company. The Claimant, although excited, would have understood the importance of the terms of hire and, later, although upset, the terms of termination.
[27] Under s. 72(1)(a) of the Nova Scotia Labour Standards Code, R.S.N.S. 1989 c. 246, “an employer shall not discharge, suspend or lay off an employee … without having given at least (a) one week’s notice in writing to the person if his period of employment is less than two years.” The Defendant company honoured that legislative commitment vis-à-vis the Claimant in its Letter of Termination.
[28] The Claimant argues that the following clause in her Letter of Termination was an incentive to sign the letter on October 25, 2017:
…
(2) Should you return an original signed copy of this letter to us, a second payment equivalent to a further two (2) week’s (sic) pay-in-lieu of notice, subject to statutory deductions.
…
Once again, payment to you of the amount noted at point #2 above is conditional upon your returning an original signed copy of this letter to us by no later than close of business on Wednesday, November 1, 2017.
However, in an email to the Defendant company on October 27, 2017, the Claimant wrote:
I am requesting, after seeking legal advice, to hold the payment of the offered two week (sic) pay in lieu of notice from being deposited on before or after November 3, 2017.
I will still be expecting the payment for hours worked, vacation pay due and 1 week payment as stated by the NS labour standards code deposited on November 3, 2017.
That date—October 27, 2017—was within the time period provided in the Letter of Termination—October 25 to November 1, 2017—for the Claimant to consider her options, including whether or not to sign the Letter of Termination. There is no evidence before this court of any threats or acts of intimidation directed to the Claimant by the Defendant’s representatives, Eleanor Moore and Nancy Clements, that would have prevented her from taking the time until November 1, 2017, to consider her options. The Claimant certainly did so after signing the letter.
[29] I find that there was a lawful contract of employment dated October 6, 2016, and signed by the Claimant electronically on October 6, 2016, followed up by a handwritten copy of her acceptance on October 13, 2016. I also find that the Letter of Termination was consistent with the terms of the Letter of Offer. The “Accept and Release” clause in the Letter to Termination was written in plain language and, had the Claimant been confused by that schedule to the Letter of Termination, she did not indicate that confusion to either Ms. Moore or Ms. Clements, nor take the time allotted between October 25th, 2017 and November 1st, 2017, to think the clause/letter over.
[30] In Richmond v. Matar, 2009 NSSC 113 at para. 15, Justice Robertson stated (at para 14): “Absent fraud or other exceptional circumstances, an executed release is given its full and intended effect.” She went on to review the principles relating to setting aside a release:
15. The Nova Scotia Court of Appeal summarized the principles relating to setting aside a release. Hallet J. in Stephenson v. Hilti (Canada) Ltd. [1989] 93 N.S.R. (3d) 366 (T.D.) stated at paras 13-15:
To summarize the principles set out in the foregoing cases, it seems to me that a transaction may be set aside as being unconscionable if the evidence shows the following:
(1) That there is an inequality of bargaining position arising out of ignorance, need or distress of the weaker party;
(2) The stronger party has unconscientiously used a position of power to achieve an advantage; and
(3) The agreement reached is substantially unfair to the weaker party or, as expressed in the Harry v. Kreutziger case, it is sufficiently divergent from community standards of commercial morality that it should be set aside.
To put it even more succinctly, is the transaction so unconscionable that it requires the intervention of the Court considering all the circumstances surrounding the making of the agreement.
I do not find that the Acceptance and Release schedule to the Letter of Termination was “so unconscionable that it requires the intervention of the Court considering all the circumstances surrounding the making of the agreement.”
[31] I do not find that the Claimant was wrongfully dismissed. No doubt the termination of her position with the Defendant company was disheartening. The Claimant had testified that her position with the Defendant company was a “step up” in her career. Nevertheless, at both the offer stage and the termination stage of her position as manager, time was built into the respective letters that afforded the Claimant an opportunity to consider the contents and implications of both. Based on the evidence before me, the Claimant at both the offer and the termination stage failed to avail herself of those opportunities.
[32] I am therefore dismissing the claim against the Defendant company.
[33] No costs will be awarded in this action.
Patricia Fricker-Bates
Adjudicator