2017 QCCQ 11677, 2017 QCCQ 11677

Rosemary c. Confidex Trading Group Inc. 2017 QCCQ 11677 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF montreal Civil Division No: 500-32-151745-165 DATE: August 28, 2017 ______________________________________________________________________ BY THE HONOURABLE Catherine pilon, J.C.Q. ______________________________________________________________________ MAURICIO ROSEMARY Plaintiff v. CONFIDEX TRADING GROUP INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mauricio Rosemary claims $15,000 from the Confidex Trading Group Inc. ("Confidex") in relation to the termination of his employment. [ 2 ] Confidex contests this claim alleging that it was entitled to terminate Mr. Rosemary without cause given that he was still on probation, and that in any event, the dismissal was for just cause. context [ 3 ] Mr.

Rosemary is a trader of fresh and frozen food products. [ 4 ] Confidex is a trading house for frozen fruits and vegetables. [ 5 ] Mr. Rosemary was looking for work in June 2015 and was recommended to Confidex through a contact. At the time, Confidex, a two-employee business, wanted to increase its volume of sales and hire a new trader. [ 6 ] Discussions were undertaken between Mr. Rosemary and René Morissette, Vice-president of Confidex. Meanwhile, Mr.

Rosemary was also in talks with two other potential employers. [ 7 ] The negotiations with Confidex essentially focused on two subjects, the salary and the probation period. Yearly salary was eventually agreed to between the parties at $70,000 gross, plus commission. The probation period first offered by Confidex was four months, and eventually agreed to at six months at Mr. Rosemary's request. [ 8 ] It was important to Mr. Rosemary to have a serious offer from Confidex since he had two other potential employment opportunities.

He did not want to risk turning them down in favor of Confidex, and then be without work shortly after having been hired. In his mind, the meaning of the probation period was that he could not be dismissed within this time. [ 9 ] Mr. Morissette rather explained in his testimony that the purpose of the probation was to allow both parties to mutually review whether their relationship was satisfactory at a given date. [ 10 ] Although Mr.

Rosemary commenced work as an international trader for Confidex in the beginning of August, an employment agreement was executed between the parties on August 24, 2015 (the "Agreement"). The Agreement contained the following in respect of probation: Probationary period : The position will come with a 6-month probation period (approx. end of January 2016) in which Confidex and yourself can review if the relationship is satisfactory from a mutual standpoint. [ 11 ] Mr. Rosemary was dismissed on October 5, 2015, after two months of employment. According to him, Mr.

Morissette advised him that Confidex could no longer afford his salary, without giving any other reason. [ 12 ] However, Mr. Morissette testified that Mr. Rosemary was not performing from a sales perspective, not having made a single sale during the two months of employment, and would spend several minutes a day, almost every day, on personal telephone calls. He further testified that these two grounds were clearly indicated to Mr. Rosemary at dismissal.

[ 13 ] Additionnally, Mr. Morissette mentioned that a few days before terminating Mr. Rosemary, while installing a program on his computer, he noticed that Mr. Rosemary was writing to suppliers asking them to communicate with him at his personal email address. He did not mention this to him when he dismissed him however, but this added to the decision to terminate. [ 14 ] The testimony of Sonia Jimenez, an employee of Confidex, confirmed that Mr. Rosemary would often step out of the office for personal calls. She also noticed that while at his desk, Mr.

Rosemary would not often spend time on the telephone, unlike experienced traders with whom she has worked in the past. [ 15 ] Mr. Rosemary denies having asked suppliers to write to him personally and feels that his performance was satisfactory. [ 16 ] Had Mr. Rosemary not been dismissed, he would have earned a gross amount of $23,333.33 until the end of the probation period. He has reduced this amount to $15,000 to be in a position to bring his claim before the Small Claims Division of the Court of Quebec. Questions at issue • What is the nature of the probation period included in the Agreement? • Is Mr.

Rosemary entitled to advance notice, or a monetary equivalent? Analysis [ 17 ] The probation provision of the Agreement does not specifically state that Mr. Rosemary may be terminated at will and without cause during the probation. Both parties agree at the very least that the effect of this clause was to provide employment to Mr. Rosemary for a period of six months, thus making the Agreement a contract of employment for a fixed term. [ 18 ] The Court does not find that this provision could reasonably be construed as guaranteed employment for six months as Mr. Rosemary suggests.

The very nature of a probation period is to give an employer greater latitude to terminate an employee who does not meet job requirements, subject to the termination not being abusive or guided by bad faith. [ 19 ] A contract of employment for a fixed term does not prevent an employer from dismissing an employee before the end of the term. The question is whether advance notice or an equivalent monetary indemnity is required. [ 20 ]

Section 82 of the Act respecting labour standards (C.S.Q., c. N-1.1) (the “ Act ”), which applies to both contracts of employment for fixed or indeterminate terms, provides that written advance notice must be provided by an employer to his employee before terminating his employment. The length of this notice will depend on the number of years of service. [ 21 ]

Section 82.1 of the Act provides exceptions to the written advance notice requirement: 82.1

Section 82 does not apply to an employee (1) who has less than three months of uninterrupted service ; (2) whose contract for a fixed term or for a specific undertaking expires; (3) who has committed a serious fault; (4) for whom the end of the contract of employment or the layoff is a result of superior force. (emphasis of the Court) [ 22 ] Having less than three months of employment at the time of termination, Mr. Rosemary is not entitled to written advance notice, or its monetary equivalent, pursuant to the Act . [ 23 ] The Court also finds that Mr.

Rosemary is not entitled to any other type of compensation pursuant to the provisions of the Civil Code of Quebec (the “ CCQ ”) which apply to contracts of employment or contracts in general. [ 24 ] As mentioned above, during the probation period, the employer has broader discretion to dismiss an employee. Mr. Rosemary was not performing from a sales perspective, and was often using business hours for personal reasons. The Court does not find that Confidex’s discretion was exercised abusively or in bad faith which could justify compensation under relevant provisions of the CCQ .

FOR THESE REASONS, THE COURT : DISMISSES the Application of the Plaintiff; THE WHOLE without costs. __________________________________ CATHERINE PILON, j.c.q.

Date of hearing: July 27, 2017