Testy email equals big money

Judy got a job covering an 18-month maternity leave for a department administrator.

The contract the employer wrote said, “Term: 18 month agreement commencing May 2, 2022 to October 27, 2023. Completion bonus: $5,000.00 to be paid on October 27, 2023 or upon layoff, whichever occurs first. No payment (partial or otherwise) is made if there is a quit or termination for cause.”

Judy was given some training by the person going on leave but not much and then was given additional tasks over and above the position she was covering.

One day in a phone conversation with a big client he got upset because she had not scheduled a service appointment he was expecting. She said she would have to talk to her boss about the scheduling problem. The conversation with the client became heated and they both raised their voices.

She immediately called and told her boss, who sent an email assuaging the client’s concerns and copied Judy. She responded by apologizing for being testy during the call.

A few days later she was called into a meeting with her boss to discuss the communication problem. Judy said she would reach out again to the client to smooth things over. The boss also mentioned that some of the service technicians had complained about her communication style and Judy promised to work harder at positive communications.

The department director was present at the meeting and he sent a summarizing email. Judy responded, indicating that she assumed the meeting they had was not a disciplinary one. She said her boss, in saying that the boss had met with senior management of the client to talk about the testy phone call, was “at best, a deliberate misdirection.” It turns out she was wrong.

She said it was “patently unfair and borderline untrue” to imply that the company’s problem with the client was all her doing. The scheduling problems were not her fault. She said she was not aware that technicians had a problem with her communication style before it was mentioned at the meeting and the direction at the meeting from her boss to only communicate by email was contrary to her training, but she was willing to comply.

She indicated that she thought it would be appropriate to discuss her compensation in light of the fact that she had been given more duties than the job she signed up for. The employer had sent her her revised employment contract, changing her hours, but she refused to sign it since it had the incorrect start date and did not address her concerns about compensation. She concluded the email with, “My expectation is that all parties concerned will be held to the same standard, and that the courtesy, honesty, and accountability that I extend will be reciprocated. I too, look forward to positive outcomes and to cordial and professional working relationships and it is my hope that we all work towards this.”

A few days later the director fired her and claimed that the tone of her communication in the letter constituted just cause for termination without notice. I will pause to note that in my 32 years of practicing law I have been required to review a lot of testy emails. It is true that some of the tone in Judy’s email was unduly confrontational. But I have seen far worse.

Ultimately, Judy sued for the remainder of her 18-month contract and the completion bonus. The judge decided that the email was not just cause and it did not constitute misconduct so egregious as to effectively render continuation of the employment relationship impossible. It was just a testy email.

The employer argued Judy should only get a few weeks’ notice since it was not really a fixed-term contract. It was not a guarantee of 18 months of employment. The employer argued that since the contract refers to the completion bonus being provided upon layoff or completion, whichever comes first, clearly the contract could be ended earlier.

The problem is there was nothing in the contract that said that it could be terminated without cause before Oct. 27, 2023. Just because she might be laid off earlier and get the completion bonus does not mean she would not also get the rest of the payments due over the 18 months. They were not mutually exclusive possibilities.

Judy was awarded the $81,000 she would have earned over the remainder of the 18 months, but not a completion bonus. The judge did not explain why she did not get the completion bonus and I can’t imagine why she did not. She was also awarded costs and interest.

I know it is self-serving, but the fact is that if this employer had spent a few hundred dollars on an employment lawyer getting a proper contract drafted it could have avoided all this grief.

There is hardly ever a reason to create a fixed-term contract. You can tell an employee what your expectations are about how long a job will last but you must have a clear termination clause that communicates the possibility of a termination any time and the notice or payments that will result.

Email Ed Canning at ecanning@rossmcbride.com.

For more employment law information: rossmcbride.com/practice/labour-employment-law.

This article was originally published by The Hamilton Spectator.