You make the call
This edition of You Make the Call features a dispute over the length and notice entitlement for a fixed-term construction project.
Jacques Mineault was a boilermaker who in September 2014 was offered a general foreman position by E.S. Fox Limited, a multi-trade construction company based in Niagara Falls, Ont., at Fox’s Vault Containment and Confinement Dryer site at the Darlington, Ont. Nuclear Power Plant. Fox contracted with Ontario Power Generation to provide construction services at the plant.
Fox told Mineault when it made the offer that the project would run through the fall of 2014 and it expected the project to be extended into the late spring or early summer of 2015. It was Mineault’s first time serving as a general foreman, but he had worked on several projects before and each time the position was for the duration of the project. He accepted the offer and started working on Sept. 15, 2014.
However, Fox’s intention was for Mineault to work in the general foreman role until another Fox employee was trained for the position — which Fox expected would take 12 weeks. The company filed a requisition form with the Electrical Power Systems Construction Association (EPSCA) — the association of construction companies performing work at Darlington — indicating it needed the general foreman position it offered Mineault for a period of six to 12 weeks.
On Dec. 9, Fox’s superintendent on the project asked Mineault if he could take on additional supervisory duties, but Mineault declined. Ten days later, on Dec. 19, Fox terminated his employment.
Mineault sued for wrongful dismissal seeking damages covering lost pay and benefits until he found a new job three months after his dismissal. Fox countered that Mineault was covered by a collective agreement between Mineault’s union — the International Brotherhood of Boilermakers (IBB) — and the EPSCA that had no requirement of notice or compensation upon termination other than four hours’ notice or wages in lieu of notice. It was customary in the industry for the terms of conditions of work for the general foreman position to be covered by the collective agreement and only the salary was negotiated separately, Fox said.
Mineault argued that he wasn’t part of the collective agreement and, therefore, entitled to common law reasonable notice. The collective agreement had a recognition clause that set out the bargaining unit as including “foreman, assistant foreman, journeyman and apprentices,” but it didn’t mention the role of general foreman.
You Make the Call
Was the worker wrongfully dismissed?
OR
Was the company allowed to dismiss the worker and provide the collective agreement notice entitlement?
IF YOU SAID Mineault was wrongfully dismissed, you’re right. The court found that while Fox may have intended for Mineault to only work for a 12-week period while another general foreman was traded, this wasn’t communicated at the time of the job offer. Normally in such circumstances, jobs were for the duration of the project and Mineault assumed that was the case. Fox didn’t indicate otherwise — the discussion leading to the job offer involved mostly compensation — and the company even told Mineault the project would likely be extended a few months into 2015. This further led Mineault to believe he was on board for the duration of the project and for all intents and purposes he was hired on a “fixed-term contract from the duration of the project,” said the court.
The court also found that Mineault was not subject to the collective agreement’s termination provision. In addition to the collective agreement not expressly including the general foreman position, there was no evidence Fox communicated to Mineault that the collective agreement’s provision would be incorporated into his own fixed-term contract with the company. Although the collective agreement terms were used as a base for salary and other terms, it wasn’t made clear that the termination provision was an implied term of the general foreman fixed-term contract and, therefore, there was no provision denying the common law notice entitlement, said the court.
Since Mineault found new employment three months after his dismissal — in late March, a couple of months before Fox’s project was completed — Fox was ordered to pay Mineault damages in lieu of notice for the three-month period for which he was unemployed. The total damages owing was just over $50,000.
For more information, see:
•
Mineault v. E.S. Fox Limited, 2019 ONSC 3747 (Ont. S.C.J.).
