2016 QCCQ 9181, 2016 QCCQ 9181

Tshuma c. Vie Autonome Montréal 2016 QCCQ 9181 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-143697-144 DATE: June 30, 2016 ______________________________________________________________________ BY THE HONOURABLE SCOTT HUGHES, J.C.Q. ______________________________________________________________________ Gift SAMUEL Tshuma Plaintiff v.

VIE AUTONOME MONTRÉAL Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Gift Samuel Tshuma claims $1 800 for lost salary from his past employer Vie Autonome Montréal («VAM»). Facts [ 2 ] Mr Tshuma was employed as a student by VAM over the summers of 2011, 2012 and 2013. [ 3 ] In the fall of 2013, VAM offered him part time work during his academic year, teaching computer technologies to the members of the organisation.

The verbal agreement between the Executive Director Mr Roger Albert and Mr Tshuma was that he would work some 12 hours per week, seven hours in the office on Fridays as well as five hours per week at home. The employment was for a fixed term until March 2014 [1] .

The agreed hourly rate for Mr Tshuma’s services was 13.15 $. [ 4 ] On December 2, 2013, Mr Albert advised Mr Tshuma that the centre would be staying open until Friday December 12 th and that his first day back from Christmas holiday would be January 11 [2] . [ 5 ] On December 9, 2013, Mr Tshuma sent Mr Albert his weekly report concerning client profiles [3] . [ 6 ] On January 3, 2014, Mr Albert wrote to Mr Tshuma [4] advising him that VAM was moving and that it would be ” suspending your services until March 7 ”.

He concluded his letter as follows: “ I will be getting back to you with a written proposal in and around mid-February ”: [ 7 ] On March 7, 2014 [5] , Mr Tshuma, not having received the promised written proposal, wrote to Mr Albert: Secondly, I had planned my school

schedule to accommodate work at VAM on Fridays and to work from home on Mondays, based on the fact that you said you would contact me mid-February with a written proposal, and I would start back at VAM on March 7th. […] I feel disrespected, under-valued and mistreated. I have suffered financial losses because of how you decided to approach the situation and the decision you made. I do not accept the way you have treated me. You have manipulated this situation to informally remove me from my position and for this reason I am demanding compensation in the amount of $1800.

For the three months that we initially agreed I would work at VAM (January, February and March). [ 8 ] On March 25, 2014 [6] , Mr Tshuma sent a final demand to Mr Albert stating that absent a response by March 28, his claim would be presented to “Small Claims Court”.

[ 9 ] On March 28, 2014 [7] , Mr Albert wrote to Mr Tshuma alleging shortcomings in his duties and denying that the employment contract was for a fixed period until March 2014. [ 10 ] It is only on May 13, 2014 [8] that VAM finally sent a Statement of employment to Mr Tshuma indicating that he had been laid off («manqué de travail») Decision [ 11 ] The parties were bound by an employment contract. The relevant provisions of the Civil Code of Québec are: 2085.

A contract of employment is a contract by which a person, the employee, undertakes for a limited period to do work for remuneration, according to the instructions and under the direction or control of another person, the employer. […] 2087. The employer is bound not only to allow the performance of the work agreed upon and to pay the remuneration fixed, but also to take any measures consistent with the nature of the work to protect the health, safety and dignity of the employee. […] 2091. Either party to a contract for an indeterminate term may terminate it by giving notice of termination to the other party.

The notice of termination shall be given in reasonable time, taking into account, in particular, the nature of the employment, the specific circumstances in which it is carried on and the duration of the period of work. 2092. The employee may not renounce his right to obtain an indemnity for any injury he suffers where insufficient notice of termination is given or where the manner of resiliation is abusive. 2094. One of the parties may, for a serious reason, unilaterally resiliate the contract of employment without prior notice. [ 12 ] An employment contract involves reciprocal obligations.

The employee must be available to render his services. The employer must allow the employee to work and pay for the services. The employer cannot dismiss an employee, except for cause, without first giving notice. [ 13 ] In Cabiakman , the Supreme Court of Canada wrote [9] 61. The employer may always waive its right to performance of the employee’s work, but it cannot avoid its obligation to pay the salary if the employee is available to perform the work but is denied the opportunity to perform it.

By choosing not to terminate the contract of employment, with its associated compensation, the employer will, as a rule, still be required to honour its own reciprocal obligations even if it does not require that the employee perform the work. Decision [ 14 ] When VAM unilaterally suspended the employment contract, Mr Tshuma accepted on the understanding that a proposal would be forthcoming to modify the agreement to his liking or to indemnify him. This was neither a layoff nor a dismissal.

Mr Tshuma was not at fault and could expect that he would suffer no financial harm because of VAM’s moving its offices. [ 15 ] When VAM reneged on its word, Mr Tshuma was justified to claim an indemnity for loss of wages. This is when Mr Albert attempted to justify the suspension of work, not by the move, but rather by shortcomings on the part of Mr Tshuma. [ 16 ] This type of after the fact justification is both unjust and unfounded. [ 17 ] On December 9, 2013, Mr Tshuma sent his weekly reports to Mr Albert who accepted them without complaint.

Mr Albert’s later allegations of dissatisfaction in this regard are surprising to say the least. [ 18 ] Mr Albert did not testify at trial. No evidence was presented to contradict Mr Tshuma’s testimony that he was always up-to-date in his reporting. The documentary evidence also confirms Mr Tshuma’s version. [ 19 ] As well, the statement of employment, sent months later, stating that Mr Tshuma was “laid off” is an admission that VAM never had reason to put Mr Tshuma’s work into question. Otherwise, why was he not dismissed? Mr Tshuma’s employment was for a fixed period.

He had a right to the payment of his salary for the whole period, absent of dismissal for cause or agreement. In case of layoff, he nonetheless had a right to notice. [ 20 ] There is no evidence to prove dismissal for cause, nor any organisational or financial reason for layoff. [ 21 ] The evidence is that VAM was to propose a modification to the contract. It never did and chose instead to ignore its word and Mr Tshuma’s rights. [ 22 ] VAM has presented no evidence to contradict Mr Tshuma’s claim of the balance of his earnings for the fixed term contract.

In any case, the circumstances justify this amount entirely. For these reasons, the court:

Grants the claim; Condemns Vie Autonome Montréal to pay to Gift Samuel Tshuma the sum of $1 800, plus interest and the additional indemnity provided for in

article 1619 of the Civil Code of Québec , as of January 3, 2014; Without costs since none are claimed. __________________________________ SCOTT HUGHES, J.C.Q. Date of hearing: February 2, 2016