Oceanart Pewter Canada Ltd. v. Hartlen

Oceanart Pewter Canada Ltd. v. Hartlen Court Court of Appeal Date 1999-09-30 Citation 1999 NSCA 110 Docket CA 156289 Judge/Registrar/Adjudicator Roscoe, Elizabeth A. (Honourable Justice) (CA); Freeman, Gerald B. (Honourable Justice) (CA); Bateman, Nancy J. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Oceanart Pewter Canada Ltd. v. Hartlen - 1999 NSCA 110 - 1999-09-30 - Library Sheet Decision Content Date: 19990930 Docket: CA 156289 NOVA SCOTIA COURT OF APPEAL [Cite as Oceanart Pewter Canada Ltd. v. Hartlen, 1999 NSCA 110] Freeman, Roscoe and Bateman, JJ.A. BETWEEN: ) ) OCEANART PEWTER CANADA ) Robert F. Morrison LIMITED ) for the Appellant ) Appellant ) ) - and - ) ) KAREN HARTLEN, TAMMY MASON ) Deanna Borden and DEBORA GRAY ) and ) Darlene A. Jamieson Respondents ) for the Respondents ) ) ) Appeal Heard: ) September 30, 1999 ) ) ) Judgment Delivered: ) September 30, 1999 THE COURT: The appeal is dismissed with costs as per oral reasons for judgment of Roscoe, J.A.; Freeman and Bateman, JJ.A., concurring. The reasons for judgment of the Court were delivered orally by: ROSCOE, J.A.: [1] This is an appeal from a decision of Justice M. Jill Hamilton who found that the three respondents had been wrongfully dismissed from their employment with the appellant and awarded them damages. [2] The respondents’ employment was terminated after they would not consent to a demand that they work every fifth Saturday and Sunday. They had been given less than a week’s notice of the new expected days of employment. The trial judge found that the requirement to work weekends in these circumstances was a “... change in their employment contracts and one they were entitled to have notice of ...”. [3] The damages awarded in lieu of notice for the respondent Mason who had worked for the appellant for four years and four months represented six months salary less adjustments for the two weeks salary paid upon dismissal and income earned during the notice period. Ms. Gray and Ms. Hartlen, who had less work experience with the appellant, received three months and four months respectively. [4] After carefully reviewing the record and considering the oral and written submissions of counsel, we have concluded that the trial judge made no error in the application of the law, nor did she make any palpable or manifest error of fact which would permit this Court to overturn the conclusions in respect to either the wrongful dismissal or the assessment of damages. [5] Authority for the finding that the days of the week that an employee is required to work can be a fundamental term of the employment contract is found in Merilees v. Sears Canada Inc., [1988] B.C.J. No. 443 (B.C.C.A.). Similar conclusions were reached in Judge v. Pelham (Town) (1995), 9 C.C.E.L. (2d) 134 (Gen.) and Smith v. Tamblyn (Alberta) Ltd. et al. (1979), 9 Alta. L.R. (2d) 274 (S.C.). [6] We dismiss the appeal with costs which are 40% of those at trial, plus the appeal disbursements. Roscoe, J.A. Concurred in: Freeman, J.A. Bateman, J.A.