When time is the very essence of your job, best not be late …

April 28, 2013 - by: Michel Bellemare 0 COMMENTS

By Michel Bellemare

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 learned in a recent Quebec case: Mardik v. Nova Bus. (2013 QCCS 1152; decision available in French only).

Facts

In May 2007, Michael Mardik 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 some carelessness and explained that more was expected of him. Over time, however, the quality of his work became of increasing concern to the employer.

On December 17, 2008, Mardik 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, but he declined their offer.

The end-of-day deadline was absolute because of the courier service’s delivery lead time. Mardik could have the tender ready to send off at 5 p.m., or he could bring it to the airport himself by 7 p.m. Unfortunately, he failed to meet either of those deadlines. Instead he finished the work the following morning. In order for the tender to arrive at its destination on 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 Mardik for cause on the grounds that there was a breach of trust resulting from nonchalance toward his responsibilities. The incident marked a culminating point in these events.

Decision

The court had to decide whether the employer was entitled to conclude that Mardik’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 nature of Mardik’s work was to prepare and submit tenders in accordance with invitations identified in the U.S. market. It goes without saying that delivering a tender in 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 he had been aware of for quite some time. What’s 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 wasn’t 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 those 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.

About Michel Bellemare:
Michel D. Bellemare practices labour and employment law, focusing on research and drafting. He advises private and public sector employers under provincial and federal regulation. Michel offers legal advice on all matters related to employment, including collective agreements, employment contracts, employment standards and severance pay. He also works on human rights files and injunctions.
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