De l’importance des représentations d’un recruteur dans l’ampleur de l’indemnité de départ

 

 

 

Par Me Paul-Matthieu Grondin

 

 

 

 

Dans la décision Hadida c. Dehumidified Air Solutions de la Cour supérieure, un gestionnaire aguerri en matière de ressources humaines s’est fait remercier de ses services après seulement deux mois d’emploi. On lui accorde pourtant 8 mois d’indemnité de départ, ce qui peut sembler très généreux a priori. Pourquoi en est-il ainsi?

Nous avions déjà fait un billet quant aux raisons qui l’avaient amené à changer d’emploi, par l’entremise d’un recruteur, ce qui arrive très souvent en 2022 et qui est un modèle d’affaires éprouvé, tant pour la firme de recrutement que pour les employeurs qui peuvent ainsi impartir la lourde tâche de trouver des employés dans un environnement de pénurie.

Cela dit, les représentations du recruteur peuvent créer des obligations juridiques pour l’employeur, et l’employé en fin d’emploi pourra s’y référer pour demander une indemnité de départ plus longue, le cas échéant. Voyez le raisonnement dans la cause qui nous occupe, particulièrement à compter du paragraphe 76 :

 

[64]        As is indicated in the Columbia Builders Suppliers and Standard Broadcasting Corp. decisions, the Courts have long recognized that the determination of the reasonable period for a termination indemnity in lieu of notice should take into account whether the employee was enticed or hired away from secure employment. In Spiering v. Novartis Pharma Canada Inc, the Superior Court held[29]:

 

“La doctrine et la jurisprudence ont bien établi que le tribunal pouvait tenir compte des années passées chez l’employeur précédent lorsque le salarié a été incité à quitter un emploi certain et rémunérateur sur la foi de représentations portant sur des responsabilités accrues et un avenir prometteur au sein de la nouvelle entreprise.”

 

[65]        There is no doubt that DAS was fully aware of the long term and stable employment of Mr. Hadida at his previous position for twelve (12) years at SCP. DAS acknowledges before the Court that it was fully aware of that fact throughout the recruitment and interview process and when DAS made an offer to Mr. Hadida. That is a significant factor to consider since DAS was aware that Mr. Hadida was giving up something important to join DAS.

 

[66]        In the present case, based upon its assessment of the evidence, as previously presented, the Court is of the view that DAS made active solicitations and representations to Mr. Hadida in order to persuade him to join DAS as its Director of Human Resources. Those representations included emphasizing the importance of the position of the Director of Human Resources at DAS, Mr. Hadida’s unique opportunity to play a key and important role in the company and its future growth, along with financial incentives in order to convince Mr. Hadida to join DAS. The DAS’ representatives stated that they wanted Mr. Hadida to join DAS, and to participate, in this key position, in the future growth and development of DAS. Those representations include:

 

“Excellent position with an excellent organisation[30].

 

This is the Go To “Human Resource position for the organisation. […] It reports to the President […] This position has a great deal of visibility within the organization[31].

 

The position has three direct reports.[32]

 

The position comes with a bonus and has the potential of paying out 200% of the target bonus if they reach 115% of their EBITDA goals. Rex has confidence they are very positive here.

 

Rex and David are very supportive and want you to be on their team; they really appreciate the opportunity to work with you to help thrive successful growth and development[33].

 

Attached is a very great offer from DAS to join their leadership team as Director HR[34]”.

 

[67]        Mr. Lane confirmed that during his interview with Mr. Hadida that he presented the position of Director of Human Resources at DAS as a great opportunity for Mr. Hadida and in particular for his future career development:

 

“We have a great company and we always look to hire great people. I thought our conversation [during your interview] revealed your desire to help us make DAS a great place to work along with an opportunity to allow you to branch out and experience your next opportunity.”[35]

 

[Emphasis added.]

 

[68]        Mr. Hadida was asked to sign the proposed employment contract quickly in order to show his future commitment to DAS:

 

“Signing the offer letter and getting it back to DAS sooner than later would show your energized commitment to DAS.”[36]

 

[69]        Mr. Hadida assumed that such commitment would be mutual.

 

[70]        Despite DAS’ representations to Mr. Hadida of his participation in the future growth and development of DAS, it did not give a reasonable chance to Mr. Hadida to develop and progress at his new position.

 

[71]        DAS was obliged to consider that it hired Mr. Hadida away from stable and remunerative long-term employment and the representations made to him, including to participate in the future growth of DAS, when they calculated, after a mere two and a half months of employment at DAS, what a “fair and equitable” termination indemnity was.

 

[72]        DAS could have decided to undertake a neutral review process to determine objectively any perception or misperception regarding any criticism of Mr. Hadida and to give Mr. Hadida an opportunity to correct any alleged conduct or behaviour, if such conduct or behaviour was in fact inadequate. DAS decided to not even try. They treated Mr. Hadida as a disposable employee. They did not consider what he had given up to join them or his reasonable expectations that he would be treated fairly, including the tenor of the representations made to him by the DAS representatives that the DAS position was for an indefinite term of employment with long-term future prospects, that becoming Director of Human Resources at DAS would be a “great step for him, an opportunity to allow him to branch out and experience [his] next opportunity” at DAS.

 

[73]        It should be noted that, before the employment contract was sent to Mr. Hadida, short term employment at DAS was never raised, envisioned or discussed with him. There was no mention of a probation period.

 

[74]        The jurisprudence demonstrates that the intensity of efforts of solicitation and enticement should be considered and have an impact on the length of the termination indemnity which is owed to an employee[37]. In the case of detailed and explicit promises or even guarantees of long-term employment, the indemnity awards have been to up to two (2) years[38].

 

[75]        In determining the length of the reasonable period of a termination indemnity, the Courts consider notably the reasonable expectations and intentions of the parties based upon their discussions and representations[39].

 

[76]        DAS’ attorney requested that the Court not consider the representations of DAS’ recruiters (Robert Underwood and Bill Bright) in the evaluation of whether solicitation and enticement took place[40]. The Court does not agree. Article 2091 C.C.Q. instructs the Court to take into account all relevant circumstances. The jurisprudence has recognized that representations of the employer’s recruiters should be considered[41]. In the present case, it is clear that the recruiters were acting as mandataries of DAS[42]. Here, Mr. Underwood and Mr. Bright were actively representing DAS, interacting with various members of DAS’ management and even negotiating Mr. Hadida’s employment contract[43].

 

[77]        DAS’ attorney refers the Court to the thank you e-mails of Mr. Hadida after the interviews and submits that they show that Mr. Hadida was really interested in the position presented. With respect, DAS’ attorney attempts to interpret these e-mails out of context. First, it was established that it was Mr. Underwood and Mr. Bright who recommended and requested that Mr. Hadida write these e-mails in order to show DAS his interest in the position if he was to eventually decide to accept it and leave his previous position. In good faith, Mr. Haida based his thank you notes on the comments made to him by DAS representatives during the interviews. Second, it is a simple matter of courtesy and common practice in such a situation. Third, after having approached Mr. Hadida and after having made representations to him that the position at DAS was very attractive and a key management position with significant financial advantages and glowing future prospects and opportunities, and having enticed Mr. Hadida with such representations, it is normal that Mr. Hadida be interested in the position.

 

[78]        DAS’ attorney attempts to quote another e-mail of Mr. Hadida out of context. DAS’ recruitment process for this position was lengthy and took a period of over four (4) months. After having approached Mr. Hadida and having made the above representations to him, the lengthy process no doubt gave rise to questioning by Mr. Hadida as to whether he should be applying and focusing his normal efforts at his present employer or direct a part of his thoughts to the opportunity proposed to him by DAS. At one point during the recruitment process, Mr. Hadida made understandable inquiries as to whether the position remained open. The e-mail is consistent with an intention by Mr. Hadida to simply seek clarification so as not to be distracted by the DAS approaches and representations if the position was filled or not proceeding and, instead, to concentrate on his current work responsibilities at SCP.

 

[79]        In their book Le congédiement en droit québécois, the authors G. Audet, R. Bonhomme, C. Gascon and M. Le François write[44]:

 

« 5.2.24 À notre avis, comme le rappelait la Cour [d’appel] dans les affaires Société Mutuelle d’assurance contre l’incendie de Dorchester, Société hôtelière Canadien Pacifique c. Baillargeon, [1987] et P.H. McCarthy Transport inc. c. Rajotte, [1985], une telle incitation sera prise en considération mais dépendra des circonstances. »

 

[80]        The Court is of the view that, in the present case, the criteria of hiring away from long-term employment and enticement is present and must be considered in the evaluation and determination of the duration of the termination indemnity period in lieu of notice owed to Mr. Hadida.