2016 QCCQ 3810, 2016 QCCQ 3810

Debono c. Axon 2016 QCCQ 3810 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division N°: 500-32-146901-154 DATE: May 5, 2016 ______________________________________________________________________ BY THE HONOURABLE VINCENZO PIAZZA, J.C.Q. ______________________________________________________________________ StepHANIE DeBONO Plaintiff v. IC AXON Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Ms.

DeBono claims $15,000, representing three months’ salary ($12,000) and damages, following the wrongful termination of her employment by IC Axon. [ 2 ] IC Axon pleads that Ms. DeBono’s dismissal was amply justified, as she lacked the most basic skills needed to perform the job for which she had been hired. CONTEXT [ 3 ] In 2014, Ms. DeBono was working part-time and looking for full-time employment.

Through the auspices of Ometz, a non- profit, community-based human services agency, she noticed a job-posting for a Project Coordinator position with IC Axon. [ 4 ] She submitted her application along with her résumé by email on November 23, 2014 [1] . [ 5 ] Ms. DeBono’s résumé specifies that her computer skills include Microsoft Word, Excel, Outlook, PowerPoint and Navision. In its introductory letter to IC Axon, Ometz indicates that Ms. DeBono is “computer literate”. [ 6 ] IC Axon interviewed Ms.

DeBono by telephone on December 4, 2014, and in person on December 9 and December 16, 2014, and sent her a letter of employment on December 23, 2014, which she accepted on December 29, 2014 [2] . [ 7 ] During the interview process, Ms. DeBono was asked whether she was familiar with MS Project; she was not. Her interviewers told her that this was not an issue as she would eventually receive training on this program. [ 8 ] Ms. DeBono’s computer skills were not tested by IC Axon. [ 9 ] Ms.

DeBono’s letter of employment mentions that “ [i]t is IC Axon’s standard policy that all new employees fulfill a probationary period of three (3) months ” and that “ [t]he term of the employment is indefinite and can be terminated on 1-day’s notice during the probationary period ”. IC Axon further writes that should Ms. DeBono’s employment be terminated without cause after the successful completion of the three-month probation, she would be provided with written notice in accordance with the Quebec Labour Standards. [ 10 ] Ms.

DeBono’s resigned from her part-time position on December 24, 2014 [3] , and she started at IC Axon on January 12, 2015. [ 11 ] She was dismissed four days later. [ 12 ] Ms. DeBono considers that she was not afforded a reasonable occasion to succeed and that IC Axon terminated her employment hastily and without sufficient cause. She says that she was not given any “real” tasks which would have allowed her to demonstrate that she did possess the skills which IC Axon considers she lacks. She was never formally tested. She argues that the decision to fire her was predicated on superficial and erroneous perceptions.

No one ever told her what was wrong with her performance. Many events held by IC Axon as indications of her incompetence were trivial and caused by the nervousness induced by her new work environment. Some incidents may also be explained by the fact that she has very poor eyesight and had not yet received her new pair of prescription eyeglasses, which she had ordered on December 29, 2014 [4] . [ 13 ] Ms.

DeBono adds that for a number of years and to this day, in her previous and current professional experiences, she has constantly used software such as Outlook, Word, PowerPoint and Excel and that she is proficient with same. After being fired by IC Axon, she was tested by Ometz and scored 93% on Word and 80% on Excel at the intermediate level [5] . [ 14 ] Ms. DeBono produces a very laudatory letter from her current employer, Congregation Dorshei Emet [6] , and her job description as administrative assistant [7] , as well as an email from Ometz communicating her abovementioned test results. However, no one from

the Congregation, Ometz, nor her previous employers was called to testify. Ms. DeBono was the only witness to appear in support of her case. [ 15 ] IC Axon called four witnesses. [ 16 ] Ms. Cynthia Grahame is IC Axon’s Director of Human Resources. She is the one who received and analyzed Ms. DeBono’s application. She conducted the telephone interview of December 4, 2014. She also took

part in the face-to-face interview of December 9 with Ms. Marie-Andrée Gravel, who was to be Ms. DeBono’s immediate superior. During this interview, Ms. DeBono’s general computer skills were discussed and she mentioned that she was not familiar with MS Project, which indeed was not a problem. This second interview led to the third one, where Ms. DeBono met two senior project managers, Mr. Calandrino and Ms. Plante. [ 17 ] The interviews were positive. Ms.

DeBono was articulate and engaging; she seemed resourceful, showed a good general attitude and appeared eager and apt to take on this new challenge. [ 18 ] Upon their arrival at the office on January 12, 2015, Ms. DeBono and another new employee spent their first hour in a human resources orientation meeting with Ms. Grahame. They were provided information as to the general workings and policies of the company and told, inter alia , where to find the payroll documents that they needed to fill-out and send to human resources in order for their salaries to be issued and deposited.

Both new employees received a checklist of actions required from them in their first week of employment [8] . [ 19 ] On January 15, 2015, Ms. DeBono informed Ms. Grahame that she was ready to “drop off” some paperwork to her, including a direct deposit form. [ 20 ] Ms. DeBono then asked Ms. Grahame to send her the payroll documents by email so she could forward them to her accountant. Although the documents in question were available on the company’s server, as had been explained during the initiation meeting, Ms. Grahame obliged and sent the forms to Ms. DeBono. [ 21 ] Ms.

DeBono says that she had simply forgotten that the documents were on the server. However, a few minutes after asking that the accounting forms be sent to her by email, Ms. DeBono asked Ms. Grahame if she also needed to fill out a W-4 document – which is a document required for American employees [9] . As Ms. Grahame points out, Ms. DeBono could only have seen this W-4 document on the server . [ 22 ] About two hours later, Ms. DeBono sent Ms. Grahame what she described as “completed tax forms” by email in PDF format. These forms were incomplete: Ms.

DeBono’s name, social insurance number, employee number and date of birth were left blank. Ms. Grahame entered this information on the forms herself [10] . [ 23 ] All this caused Ms. Grahame some concern as to Ms. DeBono’s meticulousness and attention to detail and her ability to function in a highly computerized and technological environment such as IC Axon’s. [ 24 ] Marie-Andrée Gravel is Project Coordinator and Team Lead with IC Axon. [ 25 ] She says that from the onset, she had doubts about Ms. DeBono’s competence. During her initial training on January 12, she was taking abnormally extensive notes.

She was also asking questions about elements which not only had been covered by Ms. Gravel, but on which Ms. DeBono had taken notes before. Ms. Gravel had to considerably slow the pace to allow Ms. DeBono to follow the session. [ 26 ] In the afternoon of January 12, Ms. Gravel sent Ms.

DeBono this Outlook invitation: From : Gravel, Marie-Andrée Sent : Monday, January 12, 2015 2:27 PM To : DeBono, Stephanie Subject : TouchPoint with MAG When : Thursday, January 15, 2015 9:30 AM – 10:00 AM (UTC-05:00) Eastern Time (US & Canada) Where : MAG’s desk TouchPoint: Let’s talk about how it’s going so far, if you have any questions or concerns. [ 27 ] Eleven minutes later, Ms. DeBono replied as follows: It’s going well. I’m reading the Responsibilities doc you sent and will familiarize myself with the phone system. I responded to the meetings you scheduled – not entirely sure where they are though.

Oh, do you think I could get a desk lamp? Thanks, Steph [ 28 ] Ms. Gravel was perplexed by this response. The point of the meeting [11] was to touch base with Ms. DeBono on her third day on the job, to discuss how things had been going thus far. Ms. DeBono did not seem to comprehend this, as she answered right away that it was going well. Though the invitation clearly mentioned that the meeting was at Ms. Gravel’s desk, Ms. DeBono also wrote that she was “not entirely sure” where it was to take place. [ 29 ] Ms. Gravel offered Ms. DeBono to follow an online refresher on Outlook but Ms. DeBono declined.

[ 30 ] Ms. Gravel recounts another significant incident. She had asked Ms. DeBono to configure her profile in OpenAir, a cloud- hosted professional services automation software suite used by IC Axon in its day-to-day activities. As a template, Ms. Gravel had sent Ms. DeBono a Word document containing a screenshot capture of an employee’s profile in OpenAir, formatted in accordance with IC Axon’s requirements. A while later, Ms. DeBono said that she was having difficulties formatting her profile and she asked Ms. Gravel for help. To her utter dismay, Ms. Gravel saw that Ms.

DeBono had been trying to configure the screenshot capture that she had sent her as an example. [ 31 ] When Ms. Gravel pointed to Ms. DeBono that she had not been working on her actual OpenAir profile in the cloud, she did not seem disconcerted. Although someone would expectably react with embarrassment when realizing that they had committed such a blunder, Ms. DeBono, according to Ms. Gravel, was completely impassive. It is as though she did not even apprehend how basic her mistake was. [ 32 ] All this prompted Ms. Gravel to voice her growing concerns about Ms. DeBono to Ms. Grahame.

Together, they decided to call a meeting with Lloyd Dallaire, IC Axon’s Senior Computer Technician and Inara Palieps, its Director of Content and Instructional Design, who both had participated in Ms. DeBono’s initial orientation. [ 33 ] Over his 11 years with the company, Mr. Dallaire has given the initial IT information session to approximately 200 employees of IC Axon. He always uses the same checklist to go through his initial information sessions with new employees. Ms.

DeBono attended this session on January 12. [ 34 ] As a rule of thumb, he considers that anyone who asks more than 5 questions during these sessions is potentially problematic in terms of computer literacy. He testified that Ms. DeBono asked dozens of questions which, once again, considerably slowed down the session. Although he could not recall specific examples of such questions, he testified that he quickly became alarmed by Ms. DeBono’s very limited knowledge of the computer. [ 35 ] After the initial information meeting, Mr. Dallaire accompanied Ms.

DeBono to her workstation and asked her to log into the computer. There was an image on the screen indicating to press CTRL + ALT + DEL to open the logon dialog box. Yet, Mr. Dallaire says that Ms. DeBono just sat there and did nothing. He had to physically point the CTRL + ALT + DEL keys on the keyboard. [ 36 ] Once she had finally logged in, Mr. Dallaire asked Ms. DeBono to open Outlook. She opened Internet Explorer instead. [ 37 ] Later that day, Ms. DeBono told Mr. Dallaire that she was having difficulties with her Outlook Web Application (OWA) password. Mr. Dallaire explained again to Ms.

DeBono how to change her password (as had been explained already at the initial information session earlier) but more importantly, he also explained that OWA was for remote access only and that in the office, she should access Outlook via the icon on her desktop [12] . [ 38 ] Ms. Palieps is in charge of content and instructional design and she has been with IC Axon for 16 years. She testified on the nature of the company’s activities and the market in which it operates. [ 39 ] IC Axon develops training programs for sales representatives in the pharmaceutical industry.

These representatives deal with physicians and other health professionals and they need to be trained in highly technical, complex subject matters. For this, they rely on IC Axon’s products, which are developed by Ms. Palieps’ 30-people team of scientific writers and editors, made up of graduates at the masters and doctorate levels in fields such as medicine, pharmacy, biochemistry and the like. At any given time, IC Axon typically has 70 to 80 projects running simultaneously. [ 40 ] IC Axon’s clients are extremely demanding and there is no room for error.

Deadlines must be met and quality must always be present; otherwise, clients are lost to the competition. It is a fast-paced environment and everyone must be efficient and work together for the company to succeed. [ 41 ] Ms. Palieps met with Ms. DeBono to introduce her to the content and production side of the company. The meeting lasted about one hour. [ 42 ] Ms. Palieps’ verdict is implacable: Ms. DeBono was simply not getting it. It was not conceivable to her that in a foreseeable future, her team or IC Axon’s clients could interface with Ms. DeBono as Project Coordinator. [ 43 ] Once they had gathered Mr.

Dallaire’s and Ms. Palieps’ observations, Ms. Gravel and Ms. Grahame came to the conclusion that the only available course of action was to terminate Ms. DeBono’s employment. [ 44 ] Ms. Gravel and Ms. Grahame met with Ms. DeBono to communicate this decision on January 16, 2015. Ms. Gravel and Ms. Grahame testified that during this meeting, Ms. DeBono first invoked her eyesight and the eyeglasses she had not yet received. When told about her confusing response to the Outlook invitation of January 12, she said that at least, she had not sent a “response to all” [13] .

She eventually recognized that her computer skills were somewhat insufficient for the job. She finally begged to be kept on for free and undergo training but was told that IC Axon neither had the time nor the resources to train candidates to the extent that would be required in the circumstances. She was encouraged to go back to Ometz and avail herself of training programs which might be offered there, and was wished the best of luck in finding meaningful employment better suited to her set of skills. [ 45 ] Ms.

DeBono sent IC Axon a demand letter on February 27, 2015 [14] , and she filed her claim herein on April 27, 2015. THE LAW [ 46 ] The legislation relevant to the solution of this case provides as follows: Civil Code of Québec (“CCQ”)

6. Every person is bound to exercise his civil rights in good faith. 7. No right may be exercised with the intent of injuring another or in an excessive and unreasonable manner, and therefore contrary to the requirements of good faith. 1375. The parties shall conduct themselves in good faith both at the time the obligation arises and at the time it is performed or extinguished. 1 458. Every person has a duty to honour his contractual undertakings.

Where he fails in this duty, he is liable for any bodily, moral or material injury he causes to the other contracting party and is bound to make reparation for the injury; (…). 2 085. 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. 2086. A contract of employment is for a fixed term or an indeterminate term. 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. 2094. One of the parties may, for a serious reason , unilaterally resiliate the contract of employment without prior notice . 2803. A person seeking to assert a right shall prove the facts on which his claim is based. A person who claims that a right is null, has been modified or is extinguished shall prove the facts on which he bases his claim. 2 804.

Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof. 2 805. Good faith is always presumed, unless the law expressly requires that it be proved. [Emphasis added by the Court.] ANALYSIS [ 47 ] IC Axon has demonstrated on a balance of probabilities that it had serious reasons to terminate Ms. DeBono’s employment within the meaning of

article 2094 CCQ. It was thus justified to do so without giving her the prior notice required under

article 2091 CCQ. [ 48 ] The testimony of Ms. Palieps, Ms. Grahame, Ms. Gravel and Mr. Dallaire, who testified in the absence of one another [15] , was consistent in depicting Ms. DeBono as having very poor computer skills, contrary to what was represented to IC Axon in her résumé, and limited capacity to adapt to, and perform in an extremely challenging, technological, highly competitive environment such as IC Axon’s. [ 49 ] Absent specific contractual undertakings to that effect, an employer does not have the obligation to train a new employee.

It is true that as a general rule, an employee should be given prior warning and an opportunity to amend his or her performance before being fired on account of his or her incompetence [16] . This, however, does not apply to such elementary skills and personality traits as the ones which, in light of the predominant evidence, Ms. DeBono lacked. [ 50 ] IC Axon has demonstrated that it was objectively appropriate to conclude, as it did, that any reasonable efforts to allow Ms. DeBono to overcome her many shortcomings would be vain. In the circumstances, IC Axon certainly did not have the obligation to give Ms.

DeBono “real” tasks, as she claims, to allow her to show that she was not incompetent. In light of the evidence, doing so could even have put IC Axon’s business in jeopardy. [ 51 ] The fact that she is and has been able to discharge her workload in her past and current positions is not relevant, as it has not been established that these positions require the same set of skills as that for which she has been hired by IC Axon. [ 52 ] Finally, the evidence demonstrates that Ms. DeBono was not lured into leaving a secure position in order to join IC Axon. She was not aggressively recruited by IC Axon.

Rather, it appears that she was actively seeking new employment and left her previous part- time position of her own free will. [ 53 ] Ms. DeBono has not demonstrated that in terminating her employment, IC Axon acted in bad faith, that it abused its rights, committed a fault, nor that it failed to honour any of its obligations towards her. FOR THESE REASONS, THE COURT: DISMISSES the action; WITH COSTS in the amount of $240.00 against Stephanie DeBono.

__________________________________ VINCENZO PIAZZA, j.c.q. Date of hearing: April 26, 2016 [16] Nathalie-Anne BÉLIVEAU, Karina BOUTIN and Nicolas ST-PIERRE, Les « motifs sérieux » et la « cause juste et suffisante » de congédiement , in Un abécédaire des cessations d'emploi et des indemnités de départ (2005) , Service de la formation permanente du Barreau du Québec, 2005, EYB2005DEV866,

section 3.10. See also Frédéric DESMARAIS, Commentaire sur l'

article 2094 C.c.Q. , in Commentaires sur le Code civil du Québec (DCQ) , 2014, EYB2014DCQ1671, para. 2094 565.