Canada: Up In The Air: Terminating Via Skype

Most labour and employment lawyers and human resources practitioners made a point of seeing the film "Up in the Air" starring George Clooney who, in his job at Career Transitions Corporation, traveled about the United States firing people. His position nearly became redundant due to the arrival of Ms. Keener at Career Transitions, who promoted a plan to cut costs by conducting terminations via videoconferencing. If you didn't see the movie, click here for a teaser.

We know that videoconferencing or Skype can be a useful tool for interviewing potential employees who live or work far enough away for an in-person interview to be impractical. But what about terminating an employee, airing a workplace grievance, or discussing performance over Skype?

Inevitably, emotions run high when talking performance. A recent decision from British Columbia, Oliver v. Sure Grip Controls Inc., 2014 BCSC 321, is an example of a workplace issue being discussed that led to a contest in the courts over whether the employee was fired or whether he quit:

[1] The plaintiff, Ronald James Oliver, seeks damages for the alleged wrongful dismissal from his employment with the defendant, Sure Grip Controls Inc. ('Sure Grip').

[2] Sure Grip, as represented by its shareholders, president, Brent Kornelson, and the secretary, Cynthia Kornelson, allege that the plaintiff quit his job with Sure Grip.

What happened?

A written contract of employment was entered into with the employee on January 15, 2002 for employment in Kamloops. By 2005, the employee had received a new job description as "marketing manager" changing his responsibilities and remuneration including participation in company profit sharing. In January 2006, the President and Secretary moved from Kamloops to Victoria, delegating almost full responsibility for the Kamloops operation to the management team, including the marketing manager. After this, two things happened that played a large part in fueling what happened next. The employer implemented a Handbook and a Productivity Plan.


(a) Profit Sharing

Eligibility: typically based on personal performance and company profitability, at the discretion of the owners.

(emphasis added)

(b) Termination

The Handbook set out two categories of termination: Quit (Resignation) and Dismissed. Under Dismissed, the employer could pay up to one week's pay for each full year of employment.

Productivity Plan

Under this 2010 plan, each month that an employee met or exceeded a specific target, he or she would "receive a productivity bonus equal to one percent of their wages during the program". If the average production rate over the period of employment met or equaled a certain number, final bonuses would be 10% of the employee's wage. This plan said "All active employees are eligible".

In October, 2010, the plaintiff went on a medical leave for surgery and remained on that leave until February 2011. When he returned, there were no profit sharing proceeds waiting for him. When he questioned this, he was told he would not be getting one because he "was not an employee at the time the profits were given out". The employee continued to have questions as to why he was disqualified from the profit sharing proceeds and eventually, there were two Skype facilitated meetings to discuss the issue.

The Skype Meetings

On March 9, 2011, the employee and the employer connected via Skype. The employer stuck to its position that the employee was not entitled to a bonus because he was not an employee at the time the bonuses were paid. The employee argued this was unfair, raising that he had helped build sales of $50,000 to $500,000 per month over the years. The employer suggested they all sleep on it and talk again the next day. At the end of this conversation, the employee told the employer that he wanted to retire when he was 60 (he was 53 at the time).

On March 10, 2011, the parties again Skyped. The employee was told again that he would not get the bonus as he was on medical leave and was not an employee at the time. There was much dispute over what else was said at this meeting. Although the employer claimed that it was during this Skype session that the employee said he was quitting, it admitted in Discovery that the employee did not say he was quitting.

What happened next?

The employee received two Record of Employment forms (one for holiday pay and the other severance), both saying he had been dismissed. What happened next was that the dismissed employee became a plaintiff in a wrongful dismissal suit and the employer became the defendant.

What did the court say?

The court found that the defendant had terminated the plaintiff saying:

[32] It may be that the plaintiff expressed unhappiness working for Sure Grip; however, the contentious item for the plaintiff was the failure of Sure Grip to pay money that the plaintiff thought was due to him under the Productivity Exercise Plan 2010. The plaintiff made it clear in the first meeting of his intention to retire at age 60 from Sure Grip.

[33] In the first and second Skype meeting, there is no dispute about the topics that were discussed. Mr. Kornelson does not deny that he stated he was letting the plaintiff go and that he said 'Wow, that went a lot better than I thought it was going to go'. This relates to the plaintiff's firing by Mr. Kornelson. Mr. Kornelson tells the plaintiff that he will put together a package for him.

[34] Upon telling the plaintiff that he was being let go, Mr. Kornelson asked the plaintiff to work for Sure Grip for a couple of weeks. The plaintiff's response was consistent with someone having been fired. Had Mr. Kornelson not fired the plaintiff, he would have said so after the plaintiff said 'You just fired me, I am going to pack up my office and I am going home'. Mr. Kornelson said nothing in response to this comment and he has not explained why he did not.

[35] Subsequently, the ROEs state that the plaintiff was dismissed.

[36] Mr. Kornelsons' words, the plaintiff's reaction and response to those words, objectively viewed, cause me to conclude that the plaintiff's employment with Sure Grip was terminated. I conclude the plaintiff has met the evidentiary burden.

[37] Mr. Kornelsons' reasons for giving the plaintiff a severance package are flimsy. They state that they liked the plaintiff, he was a good employee and friend, and they wanted to make sure that he would receive unemployment insurance.

But the matter didn't end here. The defendant claimed that it was limited to payment of one week per year of service under the Handbook as set out above. The court found against the defendant again on this issue saying that the Handbook Statement (although signed by the plaintiff) made it clear that the Handbook was "not a contract of employment and should not be deemed as such". As such, the court concluded that the plaintiff was entitled to the common law principles of reasonable notice.

Reasonable notice

The plaintiff had been employed for a little over 9 years, was 53 years old when terminated, supervised at various times anywhere from one to three employees and was able to obtain employment after his termination. Due to these factors, the court awarded 12 months' notice less earnings from his new employment.

What this means to you

As a general rule and as a best practice, don't use videoconferencing to terminate an employee. Leave discussions that can be emotional, passionate or misunderstood for in-person meetings. To not do so will leave the door open to unanswered questions, misunderstandings and the possibility of an acrimonious lawsuit as occurred in the Oliver v. Sure Grip Controls matter.

The second issue flowing from this decision serves as a reminder that, if you want to rely on a term or condition to limit notice at the time of termination, the best place to say this is in the employment contract not in a subsequently distributed policy or handbook. If you don't follow this general rule, you should expect even more fuel for an acrimonious lawsuit.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Alison Strachan
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions