Moot Case #5

The OC Court of Appeal

The Case of the Promotion that paled in Comparison

Quentin V. Limitless Universe Technologies, Inc.

Counsel of the Appellant

Dayderia Bailey

TyLynne Ball

Legal Issues

On behalf of the Appellant the counsel would like Your Lordship to review and consider these issues while probing this case, more specifically the ones in bold:

· Whether Quentin has a right to refuse or accept a promotion.

· Whether refusing a promotion is a good enough basis for dismissal.

· Whether Quentin was entitled to the commission of the Government notwithstanding the change of his position.

· Whether the company’s decision to promote was reasonable in the circumstances.

· Did Limitless wrongfully dismiss Quentin to ensure that the company would not have to pay Quentin his commission?

· Did Piker contravene s. 63 of the employment standard act?

· Was Quentin given reasonable notice of termination at common law?

· Did Piker repudiate the employment agreement (breach of contract) with Quentin?

Rules of Law

Breach of Contract

Breach of contract occurs when one or more parties fails to uphold the terms and agreements in the binding contract (Goepel, n.d.).

Constructive dismissal

Constructive Dismissal – of the Canada Labour Code 815-1-IPG-033 the employer has not directly fired the employee. Rather the employer has failed to comply with the contract of employment in a major respect, unilaterally changed the terms of employment or expressed a settled intention to do either thus forcing the employee to quit (Government of Canada , 2000).

Reasonable Notice

Reasonable notice is the amount of time required to reasonably cease employment, this is calculated by a number of factors such as age, position and length of service (Employment Standards Act, 2020).

Arguments

Breach of Contract

The first rule of law we would like to present is Breach of Contract for the appellant, specifically lack of consideration. In order for a contract to be legally binding, there must be an offer and acceptance (consensus), consideration, legality and eligibility. When Quentin was hired, he was to be compensated with a base salary of $2,000 per month and commission based on his gross sales on behalf of the company. There was no limit to the amount of commissions that Quentin could be paid in one year. While Quentin was on the verge of a large commission cheque due to his hard work in securing a large government contract in which he spent countless hours working on. Piker the employer presented a new employment contract in front of Quentin and asked him to sign it with lack of consideration to the benefits that Quentin would lose with the upcoming sales commission. This contract would eliminate his ability to obtain the commissions from the government contract and if successful would amount to $100,000.

In order to make this a legally binding revision to their employment contract in the event that Quentin did accept the new position, there would need to be clear language, fair opportunity when negotiating terms of the contract, time to read, understand and seek independent legal advice, meet/ exceed minimum statutory standards, bring critical details to other parties attention, provide consideration if the employee wants any changes before or after the contract is in place and the ability to customize contracts. Instead of ensuring that Quentin was presented with a fair contract that was not in breach of contract law or even given time to negotiate the new contract that was sprung on him. Piker informed him that refusal to take the new position would constitute immediate dismissal, therefore, Quentin left the premise. An employee’s refusal to sign a disadvantageous new agreement does not constitute a just cause for dismissal, therefore, notice or severance in lieu would be required.

In a decided case McKinley v. BC Tel “If just cause existed at the time of the dismissal, the defendant had the right to terminate the employment contract without giving any notice. That is because conduct amounting to just cause for dismissal constitutes a breach of the contract. Now what constitutes just cause for dismissal may vary depending upon the circumstances of the case which must be assessed by you the jury. Generally speaking, however, examples of just cause would be an employee’s serious misconduct, habitual neglect of duty, incompetence, repeated willful, disobedience, or dishonesty of a degree incompatible with the employment relationship. The conduct must be such as to undermine or seriously impair the trust and confidence the employer is entitled to place in the employee in the circumstances of their particular relationship. Something less than that is not sufficient cause for dismissal without reasonable notice”. Therefore, “Limitless” is charged with the burden to prove that it’s cause is just. Until then, we maintain our position that Quentin was wrongfully dismissed.

Yes. Quentin was irate, isn’t it safe to say that his reaction was that of any reasonable person who has been told that they will no longer be entitled to a reward that her/ she has worked hard for. I implore this court to assess this case in detail, considering the circumstances.

Constructive Dismissal

Constructive dismissal is presented when an employer makes a unilateral change of the employment terms within the contract (Government of Canada , 2000). The case of Lancia v. Park Dentistry 2018 ONSC 751 posits that “where the employer unilaterally changes a key or fundamental term in the employment contract without the employee’s consent, that is their salary/ benefits, job function, responsibility and demotion, they may be liable in tort for constructive dismissal. As alluded to in Markham: Butterworths, 1998, ss. 13.24 to 13.80 “constructive dismissal is then strict contractual principle that dictates that if the employer commits a repudiatory breach of the express or implied terms of the employment contract, the employee can elect to terminate the contract or sue for damages.”

The change to Quentin’s contract was unilateral because it was done without Quentin’s consent. Parties that have entered into a contract have a duty to act in the utmost of good faith when dealing with contracts all parts are to be dealt with honestly, fairly and in good faith (Paterson, Valley, & Mishra, 2019). Piker owes Quentin the duty to act in the utmost of good faith while proceeding with the proposed changes in the employment contract. While Quentin is aware that he has the duty to mitigate his damages by accepting the alternative employment. As discussed in the case of Mifsud V Millan Bathurst Inc (1989) the duty to mitigate damages and continue working is only required if the salary offered in the new position is the same as the salary in the former position. The working conditions are not substantially different or demeaning and the working conditions are favourable. In this case the salary offered for one year in the new position offered to Quentin equals the same amount of commission that he would be receiving if his proposal wins.

Finally, Quentin perceived the relationship between him and his boss to be that of acrimonious because he was trying to ensure that Quentin was not paid his commissions if won in the government contract. The recent decision of Frederickson v Newtech Dental Laboratory Inc., 2015 BCCA 357 has called into question this general rule, in that a finding was made that an employee may be able to reject such a proposition without risking their entitlement to reasonable common law notice.

Reasonable Notice (at common law)

The Employment Standards Act specifically outlined in section 63. (1) after 3 consecutive months of employment, the employer becomes liable to pay an employee an amount equal to one week’s wages as compensation for length of service (British Columbia, n.d.). The Employment Standards Act also provides at s. 63 (3) that:

The liability is deemed to be discharged if the employee;

(a) is given written notice of termination as follows:

(ii) 2 weeks’ notice after 12 consecutive months of employment.

(b) after 3 consecutive years of employment, to an amount equal to 3 weeks’ wages plus one additional week’s wages for each additional year of employment, to a maximum of 8 weeks’ wages.

In keeping up with the act, it is only right that Piker the employer of Limitless Universe Technologies, Inc. (“Limitless”) provide Quentin with reasonable notice of termination. Also, governing the fact that it was presented in the case that “Quinten was a highly successful salesperson” which means that he may have done a great deal for the company. Similarly, the case mentioned that Quinten worked for the company for more than a year, more specifically it said “each year” which means that reasonable notice should have been considered at the least.

In the same way that it is ethical and professional for employees to give their employers notice of termination of the employment agreement, the same courtesy should be extended to employees in maintaining the fairness of the employment relationship. In Quentin’s case, he was terminated with immediate effect which may have constituted malice or grievance on the part of the employer. Often times, contracts do not contain expressed provisions setting out the amount of notice, or pay in lieu of notice which employees are entitled in the event of termination without cause. As it was in the case of Machtinger v. Lefebvre v. HOJ Industries Ltd I urge you judges to analyse the case and make your judgements and decisions with the aid of the aforementioned case. The common law presumption of reasonable notice should at least be met with the minimum requirements set out by the Employment Standards Act. That was not done in Quentin’s case, therefore as counsels we anticipate redress for our client.

Order Sought

Dayedria Bailey and Tylynne Ball counsel of the Quentin beseech the judges to examine the facts of this case and supplementary cases provided to rule in favour of Quentin on the following orders:

1. Quinten has been wrongfully dismissed when Limitless Universe Technologies, Inc (“Limitless”) neglected to act in good faith of the company and Quinten it’s employee.

2. Limitless Universe Technologies, Inc. (“Limitless”) reinstates Quentin to his previous position of employment where he enjoys his basic salary, commissions and other benefits.

3. Quentin will be paid his commission on his contract proposal if Limitless Universe Technologies, Inc. (“Limitless”) is awarded the winner.

4. Limitless Universe Technologies, Inc. (“Limitless”) offers Quentin the promotion after the winner of the proposal has been announced.

5. Lastly, Limitless Universe Technologies, Inc. (“Limitless”) reimburses Quentin for wages he would have loss due to his dismissal as means as punitive damages.

Appendix

Carrera v Coalcorp Mining Inc, [2009] OJ No 2776