Water treatment plant operator washed away

Parent company claimed controller had no authority to hire new operator

This instalment of You Make the Call involves an Alberta water treatment operator who was hired and fired in one week.

Helen Marietta was a wastewater treatment plant operator and water distribution plant and systems operator. In October 2011, she applied to a job posting for an “employment opportunity” with Regional Water Services that she saw on the Internet. The posting mentioned flex hours, wages, benefits and a signing bonus. Regional Water Services was a water company providing 287 sites at a housing development in the Cochrane Lakes region of Alberta and the job posting mentioned a signing bonus and the opportunity to train and live at the housing development.

Marietta met with Lynn Cellars and toured the development and the water treatment plant. They discussed wages, benefits and housing and the two reached an agreement. Marietta signed an employment agreement with “Jeff Colvin aka Regional Water Services and Salt Box Services” and began her employment on Oct. 10, 2011, after giving notice to her previous employer.

Jeff Colvin was the president and director of Medallion, a management company that operated a number of businesses including Regional Water Services. Cellars was Medallion’s controller and helped run Regional.

From Oct. 10 to 17, Marietta worked at the water plant daily. She conducted an initial assessment of the plant and ensured maintenance and systems were current and optimized. Cellars visited every day. At the end of that week she received a $20 cheque for reimbursement of expenses and a $5,000 cheque for the signing bonus referred to in the employment agreement.

On Oct. 15, Medallion terminated Cellars’ employment and changed the lock box code for Regional, which the company provided to Marietta. At the same time, Colvin emailed Marietta saying it was urgent that she speak with him. Colvin also left messages on Marietta’s phone to the same effect, but Marietta didn’t reply to the email or the messages.

On Oct. 17, Marietta arrived at the water plant and couldn’t get in. The same day, she received an email from Colvin advising her employment was terminated.

Marietta sued for wrongful dismissal, seeking $25,000 in damages plus compensation for unpaid salary and benefits. Colvin denied Marietta was in an employment relationship with him or Medallion, saying Regional had no employees and all previous operators of its plant were retained as consultants and paid on an invoice basis. He also said Cellars acted without authority in hiring Marietta, which she should have known.

You Make the Call

Was Marietta wrongfully dismissal?
OR
Was there just cause to terminate Marietta’s employment?

If you said Marietta was not wrongfully dismissed, you’re right. The court found the job posting’s references to “employment opportunity, hours of work, wages, benefits and signing bonus were all indicative of an employment position, not a consultant. In addition, the agreement Marietta signed was called an employment agreement and referred to terms relating to an employment relationship.

The court also found Marietta’s discussions before being hired related to salary and no mention was made to payment by invoice. All of these factors pointed to the establishment of an employment relationship between Marietta and Regional Water Services, the court said.

 

Though no mention was made to Marietta of Medallion in her negotiations or in the employment agreement, Jeff Colvin was listed as her employer and Medallion ran Regional. The close relationship between Medallion and Regional demonstrated the two entities had “common control” by Colvin over the activities of both, said the court.

The court also found that although Colvin didn’t confirm and ratify the employment agreement with Marietta, Cellars acted as his agent. Cellars represented Regional in setting up the job posting and discussing the opportunity with Marietta, and the evidence showed Cellars also represented Regional to the provincial government. In addition, Cellars’ role was to operate the Regional water treatment plant, so it was clear he acted on behalf of Colvin and Medallion.

However, though Marietta was in fact an employee of Medallion, her actions in not answering Colvin’s urgent messages were not appropriate for her position, given the importance of public health and trust in the position. The court found Marietta’s refusal to respond to Colvin’s efforts to contact her were “serious examples of insubordination and deliberate disobedience of reasonable requests” that justified terminating the employment relationship. The court dismissed Marietta’s claim for damages.

For more information see:

Marietta v. Colvin, 2015 CarswellAlta 558 (Alta. Prov. Ct.).

 

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