Fire inspector’s future plans alarm employer

Worker talked with co-workers about starting his own business

This instalment of You Make the Call looks at a worker who was fired after his employer claimed he was trying to start a competing business and recruit co-workers.

Ameerodin Alishah worked as a senior fire inspector for a fire alarm company for eight years. In December 2004, Alishah was hired for a similar position by J.D. Collins Fire Protection Company. Collins assured him at the time of his hiring he had “a viable long-term future with Collins.”

On Jan. 14, 2005, upon the start of his employment with Collins, Alishah was asked to sign a confidentiality and non-solicitation agreement which prevented him from recruiting any Collins employees while with the company and for one year after leaving it. He had received no prior notice of the agreement and was told he wouldn’t be able to start work with Collins until he signed it.

Shortly before he started working for Collins, Alishah had casually discussed the possibility of starting his own business with a friend. He claimed these were just musings and “he had no intention of starting such a business in the immediate future.” After he joined Collins, he casually discussed his plans with a couple of his co-workers at Collins and suggested he would offer them a “theoretical position.” No salaries or other details were discussed.

Word of these discussions reached Collins management and the company’s operations manager met with Alishah on April 29, 2005. The manager told Alishah “Collins would not stand in the way of his setting up his own company” but there was no discussion on solicitation of customers. Alishah denied he was starting his own business and asked to explain the situation directly to the owner, though he only spoke briefly with him.

Alishah was then given a notice of termination which claimed he had been speaking of starting his own fire protection company with Collins’ service technicians “during working hours and while on our clients premises.” Alishah expected he would be able to have a more detailed discussion with the company’s owner and explain he “had no intention to compete with Collins in the near future.” However, as far as Collins was concerned, his termination was effective that day and the discussion was over. Alishah claimed wrongful dismissal after only three-and-a-half months with Collins.


You Make the Call

Was the employee wrongfully terminated?
OR
Did the employee violate his non-solicitation agreement and good faith obligation?



If you said Alishah was wrongfully terminated, you’re right. The court found Alishah’s long-term plans to leave and his “vague long-term discussions” about going into business with other employees did not constitute a breach of his good faith obligations to Collins. It also found he attempted to clearly explain the situation to his manager and the owner but was not given the opportunity to do so. While Alishah may not have been completely straight with his manager when asked about it, the court ruled his behaviour did not warrant summary dismissal.

“Alishah’s plan to leave his employer and start his own business was little more than an idea at the time of his dismissal,” the court said.

The court also found the confidentiality and non-solicitation agreement Alishah signed was unenforceable because he wasn’t notified of it beforehand and wasn’t given an option.

“He had resigned from his previous employment and no longer had any choice but to sign this agreement,” the court said.

Because Alishah was induced to leave his previous employer to join Collins, the court ruled his eight years of service with that employer should be included in the consideration of reasonable notice. The court awarded Alishah five months’ notice plus business expenses and costs.

For more information see:

Alishah v. J.D. Collins Fire Protection Co., 2006 CarswellOnt 7285 (Ont. S.C.J.).

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