Mall manager asked to leave the store

Employee refused position in another city when job was eliminated

This instalment of You Make the Call looks at a dispute over when an employee’s notice of termination was given.

Catherine Bent, 41, worked for Atlantic Shopping Centres Ltd., a shopping centre operator in Eastern Canada. After starting as a building manager in 1990, Bent worked her way up to the position of manager of the Fundy Trail Mall in Truro, N.S., in 1993.

On Aug. 14, 1998, Bent lost her unborn child from complications with her pregnancy. She took two weeks off work to recover and, on her doctor’s advice, added another eight weeks until mid-October to recover emotionally.

On Sept. 24, 1998, while still on leave, Bent met with Atlantic’s regional manager, who told her the Fundy Trail Mall was going to be converted from an indoor mall to a strip mall. Once the renovation was complete, it would no longer need a manager and her position would end. Bent was offered an assistant manager position in Fredericton, N.B., and was given four days to consider.

Bent rejected the offer the next day because she couldn’t relocate to Fredericton. Her husband was taking a course in Truro and would get a good job when he graduated. Atlantic sent Bent a letter that day, confirming her position would end “no later than mid-1999” and its offer of the position in Fredericton. On Feb. 5, 1999, it sent her another letter confirming her rejection of the job offer and stating her termination date would be July 30, 1999, unless she could find alternate employment. Atlantic also said it would release her on short notice if she found a job.

In March 1999, Bent applied for two jobs at Atlantic-owned properties. She wasn’t qualified for one and Atlantic hired someone else for the other. Bent was upset with the decision and went on sick leave but was turned down for short-term disability (STD). As a result, Atlantic stopped paying her as “we do not pay employees who are not at work and not on STD or LTD.” However, it did keep her as an employee so she would be eligible for medical benefits.

On Aug. 9, 1999, Atlantic sent Bent a letter confirming July 30 had been her termination date. Bent claimed she didn’t want to leave her employment with Atlantic and had never agreed to July 30 as her termination date. She said she believed there would be other employment with Atlantic available and had no understanding her career with the company would be over if she refused the Fredericton job offer.
You Make the Call

Did Atlantic give Bent sufficient notice of termination?
Did Atlantic not properly inform Bent her employment would be over if she refused to relocate?

If you said Bent was given sufficient notice, you’re right. The court found the meeting and subsequent letter of Sept. 24 and 25, 1998, when Atlantic told her after mid-1999 it would no longer have a job for her unless she took the position in Fredericton was “clear and unequivocal” notice of her termination. Atlantic’s suggestion of the possibility of other positions near Truro was just a suggestion, not a basis for arguing she wasn’t being terminated. The court found a reasonable person would take the message of the meeting and letter as clear notice of termination.

“Bent had no future job offer with Atlantic beyond the Fredericton proposal,” the court said. “The most that she could have reasonably anticipated was the possibility of continued employment, should job opportunities develop.”

Having found the notice was given on Sept. 25, 1998 for a termination date of July 30, 1999, the court agreed 10 months was reasonable notice for someone of Bent’s age with nine years of service and a “lower management responsibility.”

The court also denied Bent’s claims of bad-faith dealing by Atlantic as the company gave her more time than she took to make a decision on the Fredericton job offer and its refusal to pay her when she stopped working in March 1999 was a reasonable expectation.

For more information see:

Bent v. Atlantic Shopping Centres Ltd., 2007 CarswellNS 446 (N.S. S.C.).

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