Every job has its own peculiarities. What might be a minor shortcoming in one type of employment could be catastrophic in another. This is especially true when the breach touches on the very heart of the duties assigned to an employee. This, at least, is what an employee recently learned in Mardik v. Nova Bus. (2013 QCCS 1152; decision available in French only).
In May 2007, MM was hired as a tender administrator by Nova-Bus, a subsidiary of Volvo Canada. His role essentially consisted of responding to invitations to tender in the U.S. market. He began his career on a positive note and was given a wage increase in February 2008. The following autumn, Nova-Bus noted a certain carelessness. They explained to MM that more was expected of him. Over time, however, the quality of MM's work became of increasing concern to the employer.
On December 17, 2008, MM was working on a tender for a major project with a potential U.S. customer, valued at $15 million. The tender had to be delivered by the end of the day and time was of the essence. The entire department was aware of this important bid. Two colleagues offered to help MM. He declined their offer.
The end-of-day deadline was absolute due to the courier service’s delivery lead time. MM could have the tender ready to send off at 5:00 p.m., or he could bring it to the airport himself by 7:00 p.m. Unfortunately, he failed to meet either of these deadlines. Instead he finished the work the following morning. In order for the tender to arrive at its destination in due time, another employee had to fly with the documents to Texas and deliver them in person.
Despite all this, the employer waited more than three weeks before acting on this incident. It dismissed MM for cause, on the grounds that there was a breach of trust resulting from nonchalance towards his responsibilities. The incident marked a culminating point in these events.
The court had to decide whether the employer was entitled to conclude that MM's conduct in mid-December could be considered sufficiently serious to terminate his employment without notice. This is a condition that is enshrined in article 2094 of the Civil Code of Québec as justification for unilaterally terminating an employment agreement without prior notice.
In this case, the very nature of MM's work was to prepare and submit tenders in accordance with invitations identified on the U.S. market. It goes without saying that delivering a tender in due time to meet the requirements of the tendering process was a crucial component of the job. By failing to respect the fundamental element of his work, he had irreparably damaged his employer’s trust.
The court ruled that the employee had planned his work negligently and wound up being unable to meet a deadline of which he had been aware for quite some time. What is more, before these events took place, the employer had been meeting with the employee regularly for more than a month, trying to get him to remedy the carelessness he was showing in his work.
It was clear to the court that under the circumstances, the employee was not entitled to any pay in lieu of notice.
The employer also sought to recover the additional costs it had to incur in order to deliver the tender to Texas. The court was of the opinion that the employee’s negligence was the main cause of this expense. However, in the absence of any specific evidence on what these costs were, the court limited itself to granting a lump sum of $500, payable to the Company.
Lessons to be Learned
When an employee has no acceptable explanation for a serious error committed in what is an essential duty, an employer may have sufficient grounds to terminate the employment without notice or indemnity. However, every case must be evaluated on its own merits to determine whether the nature of the error in the context of the employee’s duties and responsibilities will justify the termination.