Final Assessment - Nayara Santos Rodrigues

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University of Winnipeg *

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Apr 3, 2024

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1 Final Assessment Nayara S. Rodrigues DPS 51115 PTF01, PACE, University of Winnipeg December 4 th , 2023

2 Question 1 Regarding the termination of Mr. Trevor Snow's senior management position, I recommend that the owner, Sarah Sharpe, provide him with an 8-month notice period. This notice period should be based on the Bardal Factors and have a specific expiration date. During the first 7 months of the notice period, Mr. Snow must continue working at Red Tape Ltd. During the last month, he will receive his salary, but will not be required to work so that he can focus on finding a similar job. Although Manitoba Employment Standards require a minimum of 8 weeks' notice for employees who have been with the company for at least 10 years, this does not consider the Bardal Factors. Therefore, it is advisable to follow the Bardal Factors to ensure a fair notice period for the employee. According to Doorey's (2016) explanation, the Bardal Factors are a set of criteria that are taken into consideration to determine the amount of notice an employer is obligated to give to an employee before terminating their contract. These factors include the nature of the employment, the duration of the employee's service, their age, and the availability of similar employment. This concept was established in the case of Bardal v. Globe & Mail Ltd., 1960, where the Court decided that Mr. Bardal, who had worked for 16.5 years before his employment was terminated, was entitled to one year of reasonable notice (p. 159). Furthermore, Andrew Monkhouse on the Canlii website, determines that the employer must provide a specific date of termination of the employment contract for the prior notice to be valid, based on the case law Di Tomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469. Additionally, the Manitoba Employment Standards specify that the notice period can be worked, paid, or a combination of both. Based on the jurisprudence in the case of Bardal v. Globe & Mail Ltd. from 1960, it is recommended that Ms. Sarah Sharpe provide her employee, Mr. Trevor Snow, with 8

3 months' notice and an expiration date to avoid any potential legal action. Mr. Snow has been employed at Red Tape Ltd. for a period of 15 years, which is similar to the case of Bardal v. Globe & Mail Ltd. As an HR Manager, my recommendation to Ms. Sarah Sharpe regarding the 15% pay cut for 10 employees in the Paperwork department, as well as the cut in premiums for health and dental, is to consider two options. The first option is to reduce the pay cut to 10% and not cut the premiums for health and dental coverage. The second option is to keep the base salary unchanged but cut all premiums for health and dental, allowing employees to choose whether they want to continue paying for these benefits themselves. I believe that either of these options would be fairer and more reasonable than the original plan. As per Doorey (2016), a reduction in pay of 15% or more would be a significant breach of an employment contract. This would entitle the employee to treat it as a constructive dismissal. Doorey refers to two cases that support this advice. In the first case, Pullen v. John C. Preston Ltd., a 10% pay cut was not deemed to be constructive dismissal because the company was believed to be in serious financial trouble. However, in the second case, Benell v. William E. Coutts Co., a 10% pay cut, combined with other changes, was considered a constructive discharge (p. 191). Therefore, it is crucial for Ms. Sarah Sharpe to consider this advice while making any decisions regarding her employees. Question 2 As an HR professional, my advice to Mr. Kevin Temper would be to explain to him that saying "I quit the job" in a moment of anger or upset doesn't necessarily mean that the employee has terminated their employment contract. According to current legislation, there

4 needs to be unequivocal evidence of resignation before the employment relationship can be considered terminated. This advice is based on the Upcott v. Savaria Concord Lifts Inc. 2009 case where the court ruled that if the resignation is not clear, it should not be accepted without being questioned by the employer. It is necessary to carry out a resignation test to ensure that the employee has truly resigned. This test raises the question, "What would a reasonable person of normal intelligence think if they were informed about these circumstances? Would this reasonable person consider the employee resigned?" (Doorey, 2016, p. 217-218). Therefore, in this case, I advise senior manager Kevin Temper to wait until he is sure that the employee has resigned, through the termination test, before proceeding with terminating the employment contract. Alternatively, he could wait for Mr. Allan Sweet to formally resign by complying with the two weeks' notice period required by the Manitoba Employment Standards. Question 3 I would recommend Fred Caring to contact the Manitoba Human Rights Commission to challenge his dismissal with cause and seek compensation for his situation. The company's decision to terminate Fred's contract with cause due to his lateness is a violation of his human rights. This is because his tardiness was caused by a change in his shift from 8 AM to 7 AM, which made it difficult for him to make the necessary arrangements to drop off his child at daycare. Fred should pursue his rights and seek compensation for the harm he has suffered. Section 9 of the Manitoba Human Rights Code protects against various forms of discrimination, including discrimination based on marital or family status. The code

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