E.M. Welding - v. -, 2012 SKPC 35

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2012 SKPC 035 Date: February 27, 2012 File: 94/11 Location: Yorkton _____________________________________________________________________________ Between: E.M. Welding - and - Brendon Holstein Sean Wagner For the Plaintiff Rick Leland, Q.C. For the Defendant _____________________________________________________________________________ JUDGMENT BRENT KLAUSE , J _____________________________________________________________________________ [ 1 ] The facts are not in dispute. The Plaintiff hired the Defendant to work for him via an Employment Contract.

The Employment Contract (Exhibits P1 and P2) dealt with training sessions while the Defendant was an employee of the Plaintiff. Essentially, the Plaintiff would top up the salary of the Defendant when the Defendant was off taking upgrading classes with a view to completing the requirements of his apprenticeship program. This was an employee benefit as it defrayed the costs of the training to the employee and also provided the employer with an employee with more marketable skills.

[ 2 ] The employee, i.e. the Defendant, was under no obligation to take the income supplement while away from work at class but if chose to do so he agreed to work for a specified period of time for the Plaintiff before he was able to leave and seek employment elsewhere.

If he chose to leave before the time period agreed upon, he would have to reimburse a prorated portion of his Supplementary Training Allowance. [ 3 ] The agreement stipulates in clause 1 of the Employment Contract: That the employee shall provide one year of continuous service ... for each approved training session ... and that the calculation for one year of service shall commence immediately after the last training session is completed by the employee. [ 4 ] And it was further agreed that: No credit for employment shall be given to the employee for work between training sessions.

That the period of continuous employment for purposes of credit towards the repayment of the training supplement employment benefit plan shall commence following the final training session taken by the employee. [ 5 ] The Defendant chose to avail himself on three occasions of this supplementary allowance and received a total of $6,400.47: Level 1 occurred between Sept. 8, 2008 and Nov. 21, 2008; Level 2 occurred between April 20, 2009 and June 26, 2009; Level 3 occurred between March 1, 2010 and April 16, 2010; and Level 4 occurred between March 7, 2011 and April 29, 2011. [ 6 ] On the third occasion, he initially indicated he would accept it but upon further reflection, cancelled it with the consent of the Plaintiff (Exhibit P3). [ 7 ] At the heart of this dispute is the meaning to be given to the initial Employment Contract (Exhibits P1 and P2) and the later revised Employment Contract (Exhibit P3) and to compare and contrast the two documents.

The latter exhibit is of no binding consequence as it was rescinded as noted above by the Defendant with the consent of the Plaintiff and no benefits flowed to the Defendant as a result of that agreement. [ 8 ] It is the position of the Plaintiff that the continuous two years of service to E.M.

Welding would have started at the conclusion of the fourth apprenticeship training session even though the Defendant was not employed by the Plaintiff when he completed the fourth level and that therefore the Defendant has not completed his two years of continuous service at all and owes the Plaintiff the entire amount of the training allowance being $6,400.47. [ 9 ] It is the position of the Defendant that the two years continuous service would have started running when he completed Level 2 while still employed by the Plaintiff, that he only received the supplemental benefits for those two sessions and that he therefore owes the prorated amount of $1,367.77 as he did not accept any supplement when he commenced Level 3, was not employed by the Plaintiff when he completed his Level 4 and it was possible that at the time he left the Plaintiff’s employ that he would never even have completed his Level 4. [ 10 ] In my opinion, there is a third alternative: that he agreed to provide one year of continuous service to the Plaintiff for each training session for which he received the training supplement which would have commenced here following the third training session while he was still employed by the Plaintiff.

In effect, he would owe E.M. Welding two years of continuous service starting April 16, 2010, which was the last day of his Level 3 training. He left the Plaintiff’s employ on December 2, 2010. This is clearly contemplated

by P1 and P2 and there is in fact an entire paragraph devoted to this situation: It is further agreed that no credit for employment shall be given to the employee for work between training sessions. That the period of continuous employment for purposes of credit towards the repayment of the training Supplemental Employment Benefit Plan shall commence following the final training session taken by the employee. [ 11 ] I point out that at the time he took the final training session (i.e. Level 4), he was no longer an employee of the Plaintiff.

In my view the word “final” must be interpreted to mean the final training session afforded by this Plaintiff to this Defendant. [ 12 ] I therefore must conclude that the Defendant owes the Plaintiff two continuous years of service dating from the completion of Level 3 which was completed while he was still in the employ of the Plaintiff. He received total supplementary benefits of $6,400.47 and supplied 230 days or approximately eight months of continuous employment after Level 3.

In my opinion, he therefore is responsible to the Plaintiff for 16 months at $266.00 per month for a total owing to the Plaintiff of $4,266.98. [ 13 ] There will therefore be judgment in favour of the Plaintiff for $4,266.98, together with the costs of this action and interest pursuant to the provisions of The Pre-Judgment Interest Act , S.S.1984-85, c. P-22. Brent Klause, J