Every job has its own peculiarities. What might be a minor
shortcoming in one type of employment could be catastrophic in
another. This is especially true when the breach touches on the
very heart of the duties assigned to an employee. This, at least,
is what an employee recently learned in Mardik v. Nova Bus. (2013 QCCS 1152;
decision available in French only).
In May 2007, MM was hired as a tender administrator by
Nova-Bus, a subsidiary of Volvo Canada. His role essentially
consisted of responding to invitations to tender in the U.S.
market. He began his career on a positive note and was given a wage
increase in February 2008. The following autumn, Nova-Bus noted a
certain carelessness. They explained to MM that more was
expected of him. Over time, however, the quality of MM's work
became of increasing concern to the employer.
On December 17, 2008, MM was working on a tender for a major
project with a potential U.S. customer, valued at $15 million. The
tender had to be delivered by the end of the day and time was of
the essence. The entire department was aware of this important bid.
Two colleagues offered to help MM. He declined their offer.
The end-of-day deadline was absolute due to the courier
service's delivery lead time. MM could have the tender ready to
send off at 5:00 p.m., or he could bring it to the airport himself
by 7:00 p.m. Unfortunately, he failed to meet either of these
deadlines. Instead he finished the work the following morning. In
order for the tender to arrive at its destination in due time,
another employee had to fly with the documents to Texas and deliver
them in person.
Despite all this, the employer waited more than three weeks
before acting on this incident. It dismissed MM for cause, on the
grounds that there was a breach of trust resulting from nonchalance
towards his responsibilities. The incident marked a culminating
point in these events.
The court had to decide whether the employer was entitled to
conclude that MM's conduct in mid-December could be considered
sufficiently serious to terminate his employment without notice.
This is a condition that is enshrined in article 2094 of the
Civil Code of Québec as justification for
unilaterally terminating an employment agreement without prior
In this case, the very nature of MM's work was to prepare
and submit tenders in accordance with invitations identified on the
U.S. market. It goes without saying that delivering a tender
in due time to meet the requirements of the tendering process was a
crucial component of the job. By failing to respect the fundamental
element of his work, he had irreparably damaged his employer's
The court ruled that the employee had planned his work
negligently and wound up being unable to meet a deadline of which
he had been aware for quite some time. What is more, before these
events took place, the employer had been meeting with the employee
regularly for more than a month, trying to get him to remedy the
carelessness he was showing in his work.
It was clear to the court that under the circumstances, the
employee was not entitled to any pay in lieu of notice.
The employer also sought to recover the additional costs it had
to incur in order to deliver the tender to Texas. The court was of
the opinion that the employee's negligence was the main cause
of this expense. However, in the absence of any specific evidence
on what these costs were, the court limited itself to granting a
lump sum of $500, payable to the Company.
Lessons to be Learned
When an employee has no acceptable explanation for a serious
error committed in what is an essential duty, an employer may have
sufficient grounds to terminate the employment without notice or
indemnity. However, every case must be evaluated on its own merits
to determine whether the nature of the error in the context of the
employee's duties and responsibilities will justify the
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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