You make the call
This instalment of You Make the Call involves a fired worker who disputed the validity of her termination clause and termination letter that she signed too quickly.
The worker was hired in October 2016 by Wilson Fuel Company — a fuel supplier in Atlantic Canada — to be the manager at the company’s store in Sydney Mines, N.S. overseeing five to eight employees. The offer of employment included a termination clause that stipulated that Wilson could terminate the worker’s employment at any time without cause by providing “working notice or pay-in-lieu of notice in accordance with the NS Labour Standards Code.”
The worker was excited about the job offer and didn’t take much time to review it. She gave the termination clause a “brief skim... a quick read,” but she didn’t fully review it. There was also no discussion about it with Wilson management and, although she was given some time to review the offer, she signed the electronic copy the same day and provided a handwritten copy one week later.
However, by April 2017, the worker was finding the job demanding and suggested to her supervisor that she should look for someone else to be the manager of the Sydney Mines store. The company instead offered her a salary increase, which the worker accepted and continued in her role.
The worker had a performance review on July 1, 2017 that made her feel like a valued employee. She also believed her store was doing well, although it had failed a few evaluations by mystery shoppers. In addition, a couple of employees quit because they didn’t like how she was managing the store. Other employees also complained about feeling bullied and harassed by the worker, but Wilson management didn’t discuss these issues with her.
On Oct. 25, 2017, the worker expected her supervisor to come to the store for the monthly inventory. However, the manager of another location arrived first. When the supervisor arrived, she asked the worker and the other manager to accompany her to the stock room, where she apologized and told the worker her employment was being terminated. The supervisor then gave the worker a termination letter that stated, “Although we are not alleging just cause, the reason underlying your termination of employment is your lack of fit for the organization.”
Accompanying the termination letter was an “acceptance and release” clause. The supervisor told the worker she could take up to one week to consider the letter and release and bring it back later, but she noted that the sooner the worker signed it, the sooner she would receive her pay in lieu of notice under the Nova Scotia Labour Standards Code plus an additional two weeks’ pay for signing the release. The worker, who later described her feelings at the time as “embarrassed, overwhelmed, and flabbergasted” but didn’t mention it to the supervisor, skimmed through the letter and signed on the spot. The worker soon after consulted a lawyer and filed a claim for wrongful dismissal damages of $10,000, arguing she wasn’t in the right state of mind and was “thrown off” when she signed the release.
You Make the Call
Did Wilson wrongfully dismiss the worker?
Was the termination valid?
IF YOU SAID the termination was valid, you’re right. The court found that the employment contract containing the termination clause that the worker signed when she joined Wilson was a lawful contract of employment. Although the worker didn’t fully read it or seek legal advice before she signed it, she was given sufficient opportunity to do so.
The court also found that the accept and release clause in the termination letter was also legal and written in plain language. After signing it, the worker may have felt that she wasn’t in the right state of mind, but she was given the chance to take some time to think about it and she also didn’t indicate any confusion about it to the supervisor at the termination meeting, said the court.
The Nova Scotia Employment Standards Code requires one week’s notice of termination to employees with less than two years of service — which Wilson provided to the worker. The additional two weeks were conditional on signing the release and were sufficient consideration for doing so, said the court.
The court determined that the termination clause and release signed by the worker were valid and the worker was not wrongfully dismissed.
“...[At] both the offer stage and the termination stage of her position as manager, time was built into the respective letters that afforded the [worker] an opportunity to consider the contents and implications of both,” the court said. “Based on the evidence before me, the [worker] at both the offer and the termination stage failed to avail herself of those opportunities.”
For more information see:
• Carew v. Wilson Fuel Co. Limited, 2019 NSSM 28 (N.S. Sm. Cl. Ct.).