Assessing reasonable notice

Inducement to leave secure employment and manner of dismissal are considered factors

Cyril Kaiser had been employed in the adhesive business in the Maritimes since 1972. In 1995 Mr. Kaiser began working for Adhpro Adhesives.

Mr. Kaiser was approached in 1998 by Robert Proulx, a salesperson with Dural in the adhesives and coating business. Dural was looking to expand its business in the Maritime region with a new salesperson. Mr. Kaiser had been approached because Dural’s marketing manager, Patrick Commander, knew of him. In the initial meeting Mr. Proulx asked if he was interested in becoming a salesperson for Dural, to which Mr. Kaiser responded “I might be.”

Following the initial meeting Mr. Kaiser met with Michael Sales, Dural’s managing director and CEO. Mr. Sales came away from the meeting with the impression that Mr. Kaiser had a good knowledge of the products and customers in the Maritimes. He recognized that Mr. Kaiser did not have the necessary sales experience but he did have knowledge of the industry and contacts. At that meeting Mr. Sales outlined Dural’s sales expectations of its sales staff and the fact that it did not provide cars to its sales staff even though salespeople were to be on the road consistently. Salary was also discussed.

Mr. Kaiser left the meeting with the impression that if he obtained a car, he had the job. He gave notice to Adhpro Adhesives and made arrangements to buy a car. He contacted Mr. Sales to inform him of his actions and to advise that he was ready to commence work on June 15, 1998. Mr. Sales had his lawyer draw up an employment contract for Mr. Kaiser to sign.

Unfortunately Mr. Kaiser’s lack of experience in sales was evident from the beginning. Dural was not pleased with his progress as he was not making enough personal calls on customers to develop business. Mr. Proulx travelled to the Maritimes once a month to assist Mr. Kaiser. Mr. Sales contacted Mr. Kaiser every two or three weeks to check on him. At no time did Mr. Kaiser ask for assistance, nor did Mr. Sales inform Mr. Kaiser that if his sales did not improve he would be dismissed.

In February 1999 Mr. Sales made the decision to fire Mr. Kaiser because of his poor sales. However Mr. Kaiser became ill before the steps to implement that decision were in place. Mr. Kaiser had surgery in April 1999.

Mr. Sales and Mr. Proulx arranged to meet with Mr. Kaiser on May 13, 1999. They picked him up at his home and took him to a restaurant for breakfast. At breakfast Mr. Kaiser was informed that his employment was being terminated. Mr. Kaiser was devastated.

An action was brought for wrongful dismissal against Dural. Dural relied on just cause for terminating without notice. The burden of proof was on Dural.

When dismissing an employee for incompetence, notice of unsatisfactory performance of duties must be given. To warrant dismissal without notice, the incompetence must be gross in nature.

In this case the incompetence was not gross in nature. No one from Dural ever told Mr. Kaiser that if he failed to meet sales expectations he would be fired. He was not given reasonable objective standards of performance nor had he received warnings that his performance was unsatisfactory and that if it continued he would be fired. As a result Mr. Kaiser was not given the opportunity to correct his performance. The Court held that Dural dismissed Mr. Kaiser without just cause.

In assessing reasonable notice in this case, the Court paid particular attention to the fact that Mr. Kaiser was induced to leave secure employment to accept the position with Dural and the nature of the dismissal. Mr. Kaiser had not been looking for another job when representatives from Dural approached him. Although the position with Adhpro Adhesives was not ideal and he would have accepted a better position if it came along, he was not actively looking for alternate employment.

In terms of the nature of dismissal, it was done before Mr. Kaiser had even recovered from his surgery. It was done in a public place and no follow-up was done to see how he handled the news.

Based on the evidence, the character and length of Mr. Kaiser’s employment, his age, experience, training and qualifications, the inducement and the manner of his firing, the Court found that Mr. Kaiser was entitled to a period of notice of nine months.

The Court also awarded compensation to Mr. Kaiser for the down payment of the car he purchased for the job of $2,300 and the deficiency he had to pay when the car was repossessed of $300.

For more information:

Kaiser v. Dural, 2001 NSSC 131.

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