It’s the case of the office applications: A sales manager who used PowerPoint to lobby her bosses for a new job was fired by Zoom after her pitch was refused.
Shelley Shultz was described by the Supreme Court of British Columbia as a “self-advocate” who actively pursued a different position with Cleardent when she was unhappy with her job.
On Dec. 29. 2021, Shultz prepared the PowerPoint and presented it to Shirley Tung and Peter Li, the co-directors of the company. It was titled “My Role at Cleardent” and outlined her plan for a newly created position.
In it, she outlined personal conflicts she had with another manager and suggested that the role of Director of Operations be created for her.
The PowerPoint contained statements such as “it’s time to move on” and “I need to move away from the role of Sales Manager as it develops into is current iteration.” It also stated that she wanted to stay with Cleardent, “I want to be part of the future” and “I must move for my mental and physical health.”
Employer struggled to respond
The presentation left the defendants unsure how to respond. Peter Li, co-founder and chief evangelist at Cleardent, struggled with how best to move forward given Shultz’s dissatisfaction in her role as sales manager.
The company declined the offer to create a new job. On Jan. 13, 2022, it terminated Shultz via a Zoom call without cause and told her she was entitled to two weeks’ pay in lieu of notice per her employment agreement. That agreement adopted the notice standards in B.C. employment standards legislation.
Shultz was 54 at the time of termination and earned a base salary of $95,000 plus commission and/or bonuses. She sued for wrongful dismissal, seeking 14.5 months’ pay; aggravated damages of $25,000; and costs plus interest of $8,000.
She argued the termination was done in a duly insensitive manner, and the manner was “confusing, distressing and callous.”
Length of service
Shultz’s tenure was contested. In February 2018, she resigned from Cleardent after more than a decade on the job. In April 2019, she returned. She argued her entire time working for the defendant should be taken into account for notice, which was just under 13 years.
Cleardent said her employment started when she returned in April 2019 — therefore the appropriate period to calculate notice is two years and nine months.
The court sided with the employer, pointing to her probation period and reset vacation entitlement.
Termination clause in her contract
The question of what, exactly, constitutes consideration for a change in contract often comes up. Here, we have an answer: $416.66 per month.
Around March 29, 2021, Shultz was promoted to sales manager and her salary was increased. The written employment contract provides:
6.3 Termination by Company Without Cause. The Company may terminate the Employee’s employment for any reasons, without cause, upon providing the Employee with only the notice or payment in lieu of notice (or a combination thereof) in the minimum amount required by the British Columbia Employment Standards Act, as amended from time to time. Benefits will end on the last day worked.
6.4 The Employee understands that by complying with this Article 6.3, the Company satisfies its entire obligation under statute and common law to provide notice or pay in lieu of notice to the Employee in the event that their employment is terminated. In no event will the Employee receive less notice or pay in lieu of notice than the minimum termination notice or pay in lieu of notice they are entitled to under the British Columbia Employment Standards Act, as may be amended from time to time.
The employer relied on that clause to provide the minimum amount required. Shultz took a different stance, arguing the clause was void because her duties and responsibilities had changed substantially; and it was a “retroactive document” where she gained a mere $416.66 increase in salary per month.
In short, there was a lack of fresh consideration to the benefit of both parties.
The court ruled in favour of the employer. The agreement was valid, and the salary increase was valid consideration to the favour of Shultz.
Finding on notice
Since her period of employment was found to be two years and nine months, the notice period of two weeks was sufficient. Therefore, she was not wrongfully dismissed, the court said.
Under common law, the court said it would have awarded two months’ wages in lieu of notice. But she was not entitled to this amount because the dismissal was not wrongful.
Bonus
Shultz was awarded a bonus based on a flat rate of $5,000 from Aug. 1 to Oct. 31; then based on a target-based system from Nov. 1, 2021 to her termination on Jan. 13, 2022.
The amount “will be determined based on (her) performance during that time, the court said.
She was awarded the bonus because it was an integral part of her compensation based on the sales manager position.
Aggravated damages
Shultz said the manner of her termination deserved aggravated damages. The dismissal occurred while she was housesitting abroad, left her scrambling to secure alternate medical insurance and exacerbated her known illness.
She also pointed to the initial reaction to the PowerPoint presentation , where the employer suggested she had resigned or should be placed on paid or unpaid leave, were in bad faith and caused her significant distress.
The employer said it acted in good faith. While they did flounder in their initial response to the PowerPoint (“understandably,” according to the court) the presentation itself presented mixed messages that Shultz was unhappy and wanted to leave her role with the company; and, conversely, wanted to stay with the company but in a role created for her.
“I find that the Defendant’s conduct in the manner of termination does not rise to the level of conduct required to support a claim of aggravated damages. In the two weeks after the PowerPoint presentation, the Defendant struggled with how to respond,” the court said. “They were not unduly sensitive. I find that the anxiety the Plaintiff suffered was of the normal level for someone who has been terminated, has to search for alternative employment, and alternative health insurance.”
Costs of 25 per cent were awarded to the defendant, set at $8,000, plus a similar percentage of disbursements.
For more information, see Shultz v Prococious Technology Inc., dba Cleardent, 2022 BCSC 1420 (CanLII),
