Written notice required in dismissal for cause

Shelley Wood was employed with Gordon’s Convenience Store as a cashier/counter person from April 2001 until her employment was terminated on Jan. 2, 2002, by Sharon Gordon, a principal of Gordon’s.

Ms. Gordon stated that she made the decision to terminate Ms. Wood on Dec. 29, 2001. On that date Ms. Gordon was told that Ms. Wood was taking money from the change box. She counted the till herself and noticed that it was $20 short. Ms. Wood returned to the store after her shift ended to buy lottery tickets. When Ms. Gordon subsequently counted the money again the $20 had been returned.

Ms. Gordon viewed the unauthorized “borrowing” as stealing. Based on an earlier incident of missing lottery tickets and this incident of borrowing, Ms. Gordon decided to dismiss Ms. Wood.

Ms. Gordon called Ms. Wood into the office and handed her an envelope containing her record of employment and her final cheque. Ms. Wood was furious and stormed out of the store. Shortly thereafter she contacted Ms. Gordon by telephone. Ms. Wood informed Ms. Gordon that she was entitled to written notice of her dismissal. Ms. Gordon complied by a letter dated Jan. 3, 2002, which was received by Ms. Wood in the mail on Jan. 14, 2002.

Ms. Wood made a complaint to the New Brunswick Employment Standards Office alleging that she had been improperly dismissed. Following an investigation an order was issued against Gordon’s directing it to pay $446.44 to Ms. Wood. In response Gordon’s requested that the matter be referred to the labour and employment board for review.

The New Brunswick Employment Standards Act provides that when an employer dismisses an employee for cause it must be done in writing. If written notice is not provided the dismissal without notice is not valid and the requirements to provide notice or pay in lieu of notice is required. Ms. Wood argued that she was not provided written notice at the time of her dismissal or within a reasonable time thereafter.

The board acknowledged that Ms. Wood was given written notice within two weeks of her termination. In determining if this was a “reasonable time thereafter” the board considered that the reason for dismissal was given verbally on Jan. 2, both in person and again during a telephone conversation.

The board held that when subsequent written reasons confirming the oral reasons are given within a reasonable time then the employer has complied with the statutory obligation. In this case the 12-day delay in receiving written notice was not unreasonable. Ms. Wood was not prejudiced by the delay as the written notice was received within the statutory two-week notice period.

The order was vacated and the complaint dismissed.

For more information:

Wood v. Gordon’s Convenience Store Ltd., New Brunswick Labour and Employment Board, File No. ES-011-02, Apr.16/02.

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