Un PDG se voit octroyer 1,8 millions de dollars suivant la fin d’un emploi de moins de 9 mois

Par Me Paul-Matthieu Grondin

Dans Arbuckle c. Domco Food Services Limited, un PDG se fait renvoyer après neuf mois à l’emploi de sa nouvelle compagnie. Celle-ci n’avait connu que peu de changement au sommet de sa pyramide décisionnelle depuis longtemps.

On se rend rapidement compte que le courant ne passe pas entre le PDG et l’ancienne garde. Celui-ci se fera reprocher plusieurs choses, dont son attitude, mais aussi des éléments plus triviaux, comme l’achat d’un ordinateur portable « trop cher » et l’embauche de sa fille.

Au final, le juge de l’instance ne retiendra pas de motifs sérieux pour expliquer le congédiement du PDG et, ainsi, ne se rangera pas du côté des prétentions de l’employeur selon lesquelles on ne doit pas payer d’indemnité de départ en la circonstance.

Les parties étaient liées par des clauses de fin d’emploi dans le contrat qu’elles avaient signé et négocié par l’entremise d’avocats. Certains chefs de réclamation faisaient même l’objet d’admissions, comme le montant de 1,8 millions qui sera finalement accordé par le juge.

Voyez ici le cœur de la décision :

[291]     It is not entirely clear from the evidence the specific date when Zuppinger decided to terminate Arbuckle as CEO.

[292]     As previously mentioned, Rubino was informed by Zuppinger of his decision prior to the 2014 Christmas break.

[293]     The evidence shows that he would not take the decision to terminate Arbuckle lightly.

[294]     Before firing the camp chef Werner, as well as another manager, he insisted that Arbuckle consult a labour lawyer so that he could be “fully armed”. As well, if that manager would not quit, then Zuppinger insisted that they must “give a series of warnings until enough to fire for cause » especially since he did not want “pay him $250K just to get rid of him”.

[295]     Without the Court being provided with details, the proof demonstrates that Zuppinger would want to avoid “another mess on our hands”, as they had experienced with a prior employee.

[296]     Apart from Zuppinger’s established termination strategy, certain dates should also be considered.

[297]     As mentioned, Zuppinger testified that by July 22^nd he was already “fed up” talking to Arbuckle. Around that time, he qualified the latter’s answer to a question as a “stupid reply”.

[298]     On August 19, he sent his email to management reminding them that financial matters had to be vetted by Rubino, and approved by him “as owner”, which he had told Arbuckle one week earlier, adding that “in the end, it’s my money on the line”.

[299]     One can seriously doubt that Domco managers would consider this to be a sign of trust and confidence in the new CEO, although it would be a restatement of confidence in Rubino.

[300]     This message was repeated to Arbuckle in Zuppinger’s action plan of September 12, which also contained the message that Domco’s lawyers, with whom he must have been in discussion, would replace the CEO in its negotiations with ArcelorMittal.

[301]     Neither of these decisions represented trust nor confidence in him. Nor would one be expected to think that the important client would see it as such.

[302]     The relationship between the parties was on a downward spiral from rather early on.

[303]     Ultimately, there was the November 24^th meeting scheduled by Zuppinger shortly after Arbuckle had “arrogantly” complained about various issues, notably being treated as a clerk and not being enabled to perform the regular duties as a CEO.

[304]     Zuppinger prepared a list of complaints entitled “Issues with Brian Arbuckle’s Conduct as Domco CEO », dated November 25, 2014.

[305]     It is useful to note that what the list did not contain were any suggestions as to what had to be improved by Arbuckle.

[306]     Zuppinger did not provide a copy of the list to his CEO before or during the meeting. He did not consider it to be necessary.

[307]     The list actually mentioned that Arbuckle was “stubborn and knows it all – arrogant – attitude that everything is wrong in Domco and he is here to save it”. It also stated that the CEO had been “well treated”, a rather self-serving conclusion.

[308]     According to Zuppinger, when he returned from a short break during the meeting, he saw Arbuckle looking at the list. This is not admitted by Plaintiff. But even if that was true, Zuppinger still did not provide him with a copy. There is also no evidence to the effect that Zuppinger prepared and provided Arbuckle with minutes or a report of that meeting, which he had done following other meetings.

[309]     Arbuckle does not recall ever seeing that list, nor does he recall a meeting with Zuppinger where all those issues were discussed, although he acknowledges that some were discussed.

[310]     It is perplexing that during the exchanges between counsel after Arbuckle was dismissed, when the latter sought to be provided with reasons therefor, no one referred back to that list of complaints or to the alleged meeting held to discuss same.

[311]     However, whether or not Arbuckle saw Zuppinger’s list of complaints, or all these issues had been discussed during the course of the November meeting, in the Court’s view, Zuppinger had already begun the process of preparing to terminate Arbuckle by no later than on or about November 18, 2014.

[312]     Accordingly, any events that occurred thereafter, especially those discussed above, as well as Defendant’s interpretation of events, must be seen and analyzed from that perspective.

[313]     It is somewhat surprising that notwithstanding the level of discontent, Zuppinger nonetheless insisted that Arbuckle prepare the annual management meeting scheduled for early December, which involved the preparation of the budget for 2015 and a strategic planning “Strengths, Weaknesses, Opportunities and Threats” (SWOT) analysis.

[314]     The evidence demonstrates that it was a highly successful exercise. And although Zuppinger denied having received the SWOT report, the evidence establishes that he had received both it and the proposed budget.

[315]     But clearly, no matter how successful that planning may have been, it was destined to be insufficient to keep Arbuckle as CEO.

[316]     The actual and immediate termination took place on or about January 13, 2015 by way of a short telephone call from Zuppinger, followed by a vague letter signed by the latter stating that he was being terminated “for serious reasons, notably that you have failed to adequately assume your duties as CEO of Domco, irremediably breaching the trust required to occupy such a position ».

[317]     Two weeks after Arbuckle had understandably sought to receive a more explicit explanation, Domco simply repeated its rather vague position. Plaintiff’s counsel responded by way of a letter of demand. In response, on February 12, 2015, Domco’s counsel simply repeated that termination was for serious cause. Once again, Plaintiff’s counsel requested further detaiils. Finally, on February 17, 2015, one full month after having fired Arbuckle, Domco provided details, which essentially reflects the defence filed on the company’s behalf.

[318]     It is perplexing that Domco had to be pushed for so long to provide Arbuckle with details as to the termination of his employment contract, especially since ultimately its position seems to reflect in many ways the list Zuppinger says he prepared for the November meeting.

[319]     In any event, regardless of such delay, and as stated at the outset of the Court’s analysis, Defendant has failed to satisfy its burden of proof as regards the existence of a serious reason to terminate.