2012 QCCQ 8121, 2012 QCCQ 8121

Commission des normes du travail c. Poku 2012 QCCQ 8121 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-22-177610-105 DATE: October 11, 2012 ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.Q.C. ______________________________________________________________________ COMMISSION DES NORMES DU TRAVAIL Plaintiff v.

MARGARET POKU Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] By proceedings instituted on December 23, 2010, Plaintiff, acting on behalf of Nyasha Samuel, an employee of Defendant, claims from said Defendant an amount of 1 445,48$ detailed as follows:

a) Unpaid salary (week of May 17 to May 24, 2010): $425.32

b) Unpaid holiday: $ 93.55 c) "Notice of termination of employment": $420.00

d) Unpaid vacation: $265.70 e) 20% fee: $240.91 [ 2 ] On August 6, 2010, before the institution of the judicial proceedings, Defendant paid to Plaintiff a total amount of $321.70 representing the amount claimed for the unpaid holiday ($93.55) and $228.15 representing the 4% vacation pay owed for the salary earned by Mrs. Samuel up to but excluding the week of May 17 to May 24, 2010. [ 3 ] In view of the preceding, Plaintiff now claims the sum of $882.77 detailed as follows:

a) Unpaid salary (week of May 17 to May 24, 2010): $425.32 b) 4% vacation pay applicable to the unpaid week of salary: $ 17.01

c) Unpaid vacation pay applicable to the holiday: $ 3.64 d) "Notice of termination of employment": $420.00 e) 4% vacation pay applicable to the "notice of termination of employment": $ 16.80 Total: $882.77 [ 4 ] Plaintiff also claims an amount of $176.57 representing the 20% fee provided for by

article 114 of An Act Respecting Labour Standards [1] (the Act). [ 5 ] The evidence adduced at trial reveals that Mrs. Samuel was employed by Defendant to take care of her aged mother. The agreed salary was $12.00 an hour for a 35 hours a week.

[ 6 ] Mrs. Samuel was employed by Defendant from February 22, 2010 to May 24, 2010 at which time her employment contract was terminated. [ 7 ] Plaintiff alleges that Defendant terminated the employment contract of Mrs. Samuel without valid reason or cause. Therefore, in addition to the unpaid salary of $425.32 for the week of May 17, 2010, Plaintiff also claims, on behalf of the employee, an amount of $420.00 representing the unpaid one week "notice of termination of employment" provided for in

article 82 of the Act which stipulates the following: " The employer must give written notice to an employee before terminating his contract of employment or laying him off for six months or more. The notice shall be of one week if the employee is credited with less than one year of uninterrupted service, two weeks if he is credited with one year to five years of uninterrupted service, four weeks if he is credited with five years to ten years of uninterrupted service and eight weeks if he is credited with ten years or more of uninterrupted service.

A notice of termination of employment given to an employee during the period when he is laid off is absolutely null, except in the case of employment that usually lasts for not more than six months each year due to the influence of the seasons. This

section does not deprive an employee of a right granted to him under another Act . " [ 8 ] At the hearing, Defendant admitted that Plaintiff is entitled to claim the amount of $425.32 representing what is owed as salary for the week of May 17, 2010. Defendant also admitted owing an amount of $17.01 as unpaid vacation pay. [ 9 ] However, Defendant contests the claim regarding the unpaid "notice termination of employment" in the amount of $420.00. In her view, as Mrs.

Samuel was dismissed for just cause, she does not owe this amount. [ 10 ] More particularly, in the defence that she filed in Court, Defendant alleges that Mrs. Samuel was fired for cause because she was found constantly sleeping on the job which was unacceptable in view of the medical condition of her mother. [ 11 ] More particularly, in the said defence, Defendant alleges the following in paragraphs 10 to 13: " 10.

Tel qu'il appert des notes signées par le Dr Etienne Durand, lesquelles sont produites en liasse sous la cote D-1, la mère de la défenderesse, Madame Mary Agnes Sofoah présente une démence de type Alzheimer avancée, et elle a besoin d'une présence quasi- constante de quelqu'un pour veiller à sa sécurité; 11. La personne représentée par la

partie demanderesse, Madame Nyasha Samuel a donc été embauchée pour prendre soin de Madame Safoah, et elle comprenait très bien qu'une condition essentielle de son emploi était qu'elle soit constamment présente auprès de Madame Safoah durant son quart de travail; 12. Or, pendant qu'elle devait soigner Madame Safoah, ladite Nyasha Samuel s'endormait; 13. Pour cette raison et pour d'autres, la défenderesse a remercié ladite Nyasha Samuel de ses services au mois de mai 2010. " [ 12 ] Testifying in Court, Mrs. Samuel categorically denied having slept on the job.

According to her, Defendant terminated the contract of employment by accusing her of having stolen plastic gloves, accusation the veracity of which she contests vigorously. [ 13 ] On this issue, Defendant testified in Court stating that she did suspect Mrs. Samuel of stealing the gloves in question. However, no conclusive evidence was presented to enable the Court to conclude in this manner. Consequently, the Court does not retain Defendant's allegations regarding this issue. [ 14 ] Defendant testified that on or around May 17, 2010, she surprised Mrs.

Samuel while she was taking a nap, standing up in the closet of the room where she was taking care of her mother. According to Defendant, Mrs. Samuel continued to sleep in this position for at least an hour. [ 15 ] Surprisingly, when this incident occurred, Defendant chose to not immediately terminate the employment contract of Mrs. Samuel.

In fact, before doing so, she waited until the incident involving the alleged stealing of the plastic gloves, which, according to her, occurred on May 24, 2010. [ 16 ] According to Defendant, the stealing of the gloves was "the straw that broke the camel's back". [ 17 ] Defendant testified that, in view of her mother's medical condition, it was a condition precedent of employment that Mrs. Samuel was not to sleep on the job. [ 18 ] Defendant's testimony on the issue of "sleeping on the job'' was corroborated in part by that of another employee, Daniel Pépin. [ 19 ] According to Mr.

Pépin, previously to the occurrence of the incident referred to by Defendant, Mrs. Samuel admitted to him that she had slept on the job. [ 20 ] On the issue of "sleeping on the job", the evidence is contradictory as to whether on not Mrs. Samuel did take a nap on May 17, 2010. However, for discussion purposes, assuming that the occurrence of this incident was established conclusively, the evidence reveals that when the incident occurred, Defendant did not immediately terminate Mrs. Samuel's employment contract. By keeping Mrs.

Samuel in her employment, Defendant implicitly accepted the fact that the incident was not in itself sufficiently serious to justify her immediate dismissal. [ 21 ] This being said, it is important to note that to the knowledge of Defendant, no other incident regarding "sleeping on the job" by

Mrs. Samuel did occur between May 17 and May 24, 2010. Consequently, the Court concludes that Defendant's decision to terminate the contract of employment of Mrs. Samuel on May 24, 2010, was unjustified. [ 22 ] In view of the preceding, considering that the Court concludes that Mrs. Samuel was dismissed without just cause, in conformity with

article 82 of the Act , she is entitled to a "notice of termination of employment" in the amount of $420.00 plus $16.80 representing the corresponding vacation pay. In addition, Defendant also owes the amounts claimed as unpaid salary (425,32$ week of May 17, 2010) and the corresponding vacation pay. [ 23 ] Plaintiff's action will therefore be maintained for the amount of $882.77 plus an additional amount of $176.57 representing the fee stipulated in

article 114 of the Act . FOR THE FOREGOING REASONS, the Court: MAINTAINS Plaintiff's action in part. CONDEMNS Defendant to pay to Plaintiff the sum of $1,059.34 as follows: 1) $882.77 with interest to be calculated in conformity with

article 114 of An Act Respecting Labour Standards as of August 24, 2010. 2) $176.57 with interest at the legal rate as of January 18, 2011. THE WHOLE with costs. __________________________________ ARMANDO AZNAR, J.Q.C. Me Benjamin Paré RIVEST, TELLIER, PARADIS Avocat de la demanderesse Me Robert E. Reynolds Avocat de la défenderesse Date of hearing: October 3, 2012.