2013 QCCQ 1483, 2013 QCCQ 1483

Riendeau c. En Gros pierre inc. 2013 QCCQ 1483 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-130780-119 DATE: February 18, 2013 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ JONATHAN RIENDEAU […] , Laval (Québec) […] Plaintiff v.

EN GROS PIERRE INC. 6412, route Transcanadienne, St-Laurent (Québec) H4T 1X4 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Jonathan Riendeau is claiming $7,000 from En Gros Pierre inc. (“En Gros”), representing prior notice following his dismissal. En Gros maintains that given Mr. Riendeau’s performance and errors, his termination was justified. [ 2 ] En Gros requested a revocation of judgment, with respect to the judgment rendered on June 18, 2012.

It alleged it did not receive notice of the hearing. Its motion was taken under advisement. The Court, after examination of the file, concludes as follows: [ 3 ] No notice of the hearing was given to En Gros since it had not submitted a defence or paid the judicial fees required to contest the action. [ 4 ] En Gros had hired an attorney, who advised the Court it was representing this company and requested a copy of Mr. Riendeau’s exhibits.

Its attorney submitted that despite having advised the Court that En Gros was represented by legal counsel, the company did not receive notice of the hearing. [ 5 ] Lawyers are not permitted to appear or act on behalf of their clients in the Small Claims Division. [ 6 ] En Gros was misled by its counsel, first in that counsel acted on its behalf, contrary to the provisions of article 959(2) of the Code of civil procedure.

In addition, its counsel failed to advise En Gros that in order to receive notice of a hearing, a defence must be filed and the requisite fees must be paid. [ 7 ] The undersigned considers that En Gros should not be penalized for its attorney’s actions. For this reason, the Court grants the revocation of judgment and allows En Gros to present its defence. The evidence: [ 8 ] Mr. Riendeau was hired by En Gros, through the auspices of a recruitment agency, on June 8, 2011.

He sought a position as warehouse manager but claims he ultimately was hired as Director of operations, reporting to the President of En Gros, a company which distributes fish and sea food products. Mr. Riendeau left his position with Maple Leaf Foods to assume his new position, seeking job security.

[ 9 ] According to Mr. Riendeau, En Gros wanted to restructure its operations. It was necessary to evaluate its needs and improve its operations. He began working on June 27, 2011, which was a four day week. [ 10 ] Mr. Riendeau, together with three other employees, had two days of training with respect to alimentary norms in effect. He spent some time during the first week observing the warehouse operations but no structured orientation or training was provided. En Gros’ president offered his help but Mr. Riendeau declined his offer. [ 11 ] Mr.

Riendeau testified as to a number of problems affecting En Gros, including the lack of personnel in the warehouse, the lack of a health and safety committee, the lack of tools to evaluate personnel, etc.. He began the process to establish a health and safety committee and created necessary documents; he participated in hiring several persons for the warehouse; he created documents for the evaluation of personnel and food loss; he managed the flow of personnel in the warehouse, etc.. [ 12 ] He estimated it would take 3 to 6 months to see results stemming from the changes instituted.

However, his employment was terminated, on August 5, 2011, with no prior notice or warning. En Gros’ Presient, Mr. Hampas, did not provide him with any reason for his dismissal other than Mr. Hampas decided not to pursue the project for which Mr. Riendeau was hired. [ 13 ] It took Mr. Riendeau nine and a half months to obtain a new position. He had difficulty explaining his short employment period, at En Gros, to prospective employers. [ 14 ] According to Lyndee Michaelson, Responsible for human resources, Mr. Riendeau was hired as a warehouse manager, but was never on the floor of the warehouse.

She alleged that he made a number of decisions which impacted negatively on the company, and resulted in spoiled products, late deliveries, missing orders etc.. [ 15 ] Ms. Michaelson testified that she advised Mr. Riendeau he was not spending sufficient time in the warehouse. Complaints had been received from chefs but Mr. Riendeau told her not to worry. According to Ms. Michaelson, although Mr. Riendeau had no training, he believed he could take over. [ 16 ] During Mr. Riendeau’s last period of work, Ms. Michaelson claimed she reiterated the complaints and told Mr.

Riendeau that services were down and expenses were increasing. [ 17 ] Mr. Riendeau claimed he had never seen the list of complaints presented in Court and during his time at En Gros, no complaints had been raised. He and Mr. Hampas discussed the problems he had noted, the position of supervisor for the warehouse as well as projects with a view of expanding operations in Ontario. During Mr. Riendeau’s last week of work, Mr. Hampas was leaving on holiday and told Mr. Riendeau he hoped he could count on Mr. Riendeau during his absence. Analysis: [ 18 ] Mr.

Riendeau worked approximately 5 weeks at En Gros before he was dismissed. He had a short amount of training regarding alimentary norms. However, as Ms. Michaelson stated, he had no specific training or orientation for his position. [ 19 ] Ms. Michaelson claims Mr. Riendeau was hired as a warehouse manager. However, the job offer states that En Gros offered Mr.

Riendeau a job as an Operations Manager, reporting directly to the President. [ 20 ] While the responsibilities listed in the job offer included overseeing the warehouse departments and, with the Human Resources manager, hiring warehouse employees, he was also responsible for ensuring the effective flow of communication between different departments, for training and development of the floor managers, for identifying ways to improve work, for ensuring safe work procedures were followed, etc.. [ 21 ] Contrary to the contention of En Gros, the list of duties does not limit his responsibilities to the warehouse. [ 22 ] In Court, Ms.

Michaelson presented a long list of complaints concerning Mr. Riendeau’s performance. However, the items enumerated were not dated and the alleged complaints were made by other staff, who were not present to testify in Court. [ 23 ] Mr. Riendeau maintained he was never advised of the alleged criticisms. When dismissed, the reasons were not divulged. Mr. Hampas simply told him that he had discontinued the project for which Mr.

Riendeau had been hired. [ 24 ] Prior to terminating employment, an employer should inform an employee of the employer’s expectations and of the employee’s shortcomings and provide the individual with the appropriate training. The employee should then be given the opportunity of showing his or her capacity to do the work [1] . Finally, an employer should warn an employee that his or her job is at stake. [ 25 ] In the present case, none of these elements was present. Although En Gros accumulated a list of grievances, there is no evidence that it provided Mr. Riendeau with the list.

Furthermore, the various issues and problems for which Mr. Riendeau is reproached were provided by other employees, none of whom testified in Court. [ 26 ] During his employment, Mr. Riendeau maintains he was never advised of any complaints or performance problems. Moreover, he was never told that his work was so unsatisfactory that in the absence of change, his job was in jeopardy. [ 27 ] Based on the foregoing, the undersigned is of the view that there was not just cause for the termination of Mr.

Riendeau’s employment. [ 28 ] In such cases, an employer must provide sufficient notice of termination or, alternatively, in the absence of due notice, compensate the employee with an amount equivalent to a reasonable notice period. In the first case, the employee continues to work and receives his or her usual salary and benefits. In the latter instance, the employer pays the employee the equivalent of the salary the

employee would receive if he or she had worked during the notice period [2] . [ 29 ]

Article 2091 of the Civil Code of Quebec states: 2091 . Either party to a contract with 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 special circumstances in which it is carried on and the duration of the period of work. [ 30 ] What then is the appropriate notice of termination in the present case? [ 31 ] A number of factors have been taken into consideration in cases of dismissal.

The authors Audet, Bonhomme, Gascon and Proulx in the text Le congédiement en droit québecois [3] , refer to the case of Columbia Builders Suppliers Co . c. Bartlett [4] which, in determining a reasonable notice period, lists the circumstances of hire, the nature and importance of the work, whether the employee left a definite and remunerative position, the parties' intentions and the difficulty of finding another satisfactory position of equal importance.

Other factors considered include the number of years of service, the age of the employee, the nature of the position held, the state of the job market, etc. [5] . [ 32 ] While a younger employee, with a short duration of employment, tends to reduce the notice period, other factors have the effect of increasing the notice period, namely the lower level of instruction, the amount of training of the employee, family obligations, unfavourable employment conditions, the lack of references, the difficulty in finding another job and the lack of motives for the decision taken. [ 33 ] The authors Morin, Brière, Roux et Villagi in their text Le droit de l'emploi au Québec [6] emphasize that the notice period must be reasonable and compensate the employee for the prejudice suffered. [ 34 ] However, as the Court stated in Standard Broadcasting [7] , the evaluation of the appropriate notice period remains a question of fact in every case. [ 35 ] In the present instance, there are several factors that militate in favour of a longer notice period than that usually granted for a short duration of employment. [ 36 ] Mr.

Riendeau was summarily dismissed without any prior warnings as to the alleged inadequacy of his work and was not appraised as to the reasons for his dismissal. [ 37 ] In addition, Mr. Riendeau had left a position to come to work at En Gros. Even if the change was his choice, he came to En Gros seeking a more secure position and after working for only 5 weeks, he was without employment and his wife had just given birth.

Despite his efforts to obtain another position, he was unable to find any employment for nine and a half months. [ 38 ] It should be noted that our Courts, taking into consideration the particular facts of a given case, have become more generous in the amount of notice granted [8] . The undersigned adopts this position and considers, in light of the facts of this case, an appropriate notice period would be eight (8) weeks. Since Mr. Riendeau’s salary was $55,000 per year, this amounts to $ 8 461.54. This sum is reduced to $7 000 given the monetary limit of an action involving a small claim [9] .

FOR THESE REASONS, THE COURT: GRANTS the motion to institute proceedings; CONDEMNS En Gros Pierre inc. to pay Jonathan Riendeau $7 000 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec since September 14, 2011 plus judicial fees of $159. __________________________________ SUZANNE HANDMAN, J.C.Q.

Date of hearing: January 28, 2013