We revisit significant cases in labour and employment law from 2018
The year 2018 brought forth numerous noteworthy decisions in employment law across the country. We have summarized several of these decisions below.
PART 1 — QUÉBEC
(X) v. Reitmans (Canada) ltée, 2018 QCTAT 2357
A distribution centre supervisor with 35 years of service challenged his termination after being sentenced to 20 months in prison for sexually abusing a minor. Released pending the appeal of the decision, the plaintiff, who had until then "extended" his vacation, let his employer know that he would be back to work the next day. Instead, the plaintiff was thereafter terminated when the employer found out the reasons behind his absence. The plaintiff’s appeal was later denied and he was incarcerated, at which point the employer terminated his employment a second time, reasoning that he was unavailable to work. In Québec, section 18.2 of the Charter of Human Rights and Freedoms prohibits terminating an individual’s employment due to a conviction, if it is in no way connected with the individual’s employment. The employer notably argued that 90 per cent of its employees were women and that the plaintiff was in a position of authority. These arguments were rejected by the Tribunal administratif du travail of Québec that found no objective link between the plaintiff’s conviction and his employment. The second termination was also quashed as the real reason the plaintiff could not work was the first dismissal, not his incarceration. As he had served his sentence, the plaintiff was available to work and so the Tribunal ordered his reinstatement.
Kerdougli v. La Vie en Rose inc., 2018 QCTDP 8
One of three similar decisions involving Mr. Kerdougli rendered in the past year, and by which the Tribunal des droits de la personne (Human Rights Tribunal) sent a clear message to employers: do not ask questions about a candidate’s origins or any other protected grounds for that matter! Mr. Kerdougli applied for a position of logistics coordinator for the international division of La Vie en Rose Inc. During his third interview, he was asked about the origins of his last name, to which he replied Algerian. In the end, Mr. Kerdougli was not offered the job. He then filed a complaint with the Québec Human Rights Commission alleging discrimination. Section 18.1 of the Québec Charter of Human Rights and Freedoms prohibits an employer from requiring information related to protected grounds in the Charter, which includes race and ethnic or national origin. Before the Tribunal, the employer argued that the question regarding the origins of Mr. Kerdougli’s name was asked because the company has international business partners, including in Algeria, and that the candidate’s origins could be an advantage. As such, the question was related to the job’s requirements and not discriminatory. Before the lack of evidence supporting the employer’s position, and the fact that this question had not been asked to any of the other candidates being interviewed for the position, the Tribunal held that the employer had violated the Charter. The Tribunal added that a question regarding a protected ground is automatically considered discriminatory, unless one of the exceptions under the Charter applies, which was not the case here. Mr. Kerdougli was awarded $5,000 in moral damages, but the employer was not ordered to pay punitive damages.
Société des casinos du Québec inc. v. Tribunal administratif du travail, 2018 QCCS 4781
On December 7, 2016, the Québec Tribunal administratif du travail (Administrative Labour Tribunal) found that "first level" managers working for the Société des Casinos du Québec could unionize, since section 1(l)(1) of the Labour Code excluding managers from the definition of "employee" was inoperative. In their regard, it would unjustifiably interfere with the principle of freedom of association guaranteed by the Canadian and Québec Charters. Following analysis, the Superior Court upheld the application for judicial review filed by the Société des Casinos du Québec. The Court recalled that in order to demonstrate interference with the principle of freedom of association, three elements needed to be proven: the contestation of the exclusion of managers under the Labour Code was based on the right of freedom of association, rather than on access to a specific legal regime (i.e., that of the Labour Code); the exclusion of the managers concerned by the application of the Labour Code would entail a substantial impairment of their right of freedom of association; and the State was responsible for that substantial impairment. The Court found that the first two conditions were met, but disagreed that the State was responsible for this impairment, meaning the application for judicial review was allowed, the Tribunal’s decision was quashed and the exclusion stipulated by section 1(l)(1) of the Labour Code was deemed constitutionally valid and operative. This decision re-establishes the status quo, but it will be undoubtedly challenged in appeal. It therefore remains to be seen how the Court of Appeal and, eventually, the Supreme Court of Canada, will rule before the final outcome of this judicial saga will be known.
Digital Shape Technologies Inc. v. Walker, 2018 QCCS 4374
In this decision rendered by the Superior Court, Digital Shape Technologies Inc. and its president filed a motion against the defendant, an ex-employee, for damages due to negative comments published anonymously on the RateMyEmployer.ca website. Alleging a violation of the ex-employee’s ongoing duty to act faithfully and honestly towards her ex-employer, the company and its president each claimed $75,000 in moral and punitive damages. After receiving a formal notice, the defendant immediately retracted the comments she had published on the website. She had worked for the employer for about four years before having her position abolished and signing a Separation, Release and Discharge Agreement which provided her with 12 weeks’ worth of termination notice in exchange for agreeing to confidentiality and non-disparagement clauses. About two months after her termination, she posted a total of three comments on RateMyEmployer.ca, dissuading anyone from working for her ex-employer. The Court found that these comments contained exaggerations and falsehoods, in addition to revealing confidential information relating to the company. As a result, the defendant had violated her statutory obligations under the Civil Code of Québec and those she agreed to in the release she signed upon termination. Furthermore, in posting these comments online, the defendant had knowingly and intentionally defamed and tarnished the company’s reputation. The Court awarded the company $10,000 in moral damages and $1,000 in punitive damages. However, no damages were awarded to the president as he had not personally suffered any prejudice.
PART 2 — ONTARIO
Amberber v. IBM Canada Ltd., 2018 ONCA 571
In Amberber v. IBM Canada Ltd., 2018 ONCA 571, the Ontario courts were once again asked to make sense of whether they would give effect to a contractual termination clause. The issue in the case was the enforceability of a termination clause in a written contract of employment. On a motion for summary judgment, the Ontario Superior Court of Justice initially concluded that the termination clause was ambiguous and did not clearly set out an intention to deprive the employee of his entitlement to damages at common law. The Court held the clause to be unenforceable. The employer, IBM Canada Ltd. (IBM) appealed.
The Court of Appeal overturned the motion judge’s decision, allowing IBM’s appeal and dismissing the employee’s cross-appeal, confirming certain interpretation principles and stating that the termination clause had to be read as a whole and not "piecemeal", as the motion judge had done. The Court of Appeal stated:
[58] With respect, I am unable to agree with the motion judge’s reasoning or the result.
[59] The fundamental error made by the motion judge is that she subdivided the termination clause into what she regarded as its constituent parts and interpreted them individually. In my view, the individual sentences of the clause cannot be interpreted on their own. Rather, the clause must be interpreted as a whole.
[60] When read as a whole, there can be no doubt as to the clause’s meaning.
[61] The parties have set out a formula for calculating the amounts owing to a terminated employee. The amounts owing include any entitlement under employment standards legislation and the common law. To the extent that employment standards legislation provides for something superior, the employee will receive the statutory entitlement.
In coming to this conclusion, the Court of Appeal stated that courts should not strain to create an ambiguity where none exists, and ultimately ruled that the employer complied with the termination clause and the applicable legislation. The Court allowed the appeal and dismissed the wrongful dismissal action.
Wood v. CTS of Canada Co., 2018 ONCA 758
In Wood v. CTS of Canada Co., 2018 ONCA 758, the Ontario Court of Appeal examined employer obligations under the province’s legislated requirements during mass terminations of employment. In doing so, the Court of Appeal provided guidance to employers on providing effective notice to employees, as well as on serving and providing notice to the Director of Employment Standards.
On April 17, 2014, CTS of Canada Co. gave written notice to employees that it was closing a plant and that, as a result, the employment of all employees at the plant would be terminated effective March 27, 2015. The termination date was subsequently extended to June 26, 2015. In response, a class action was brought on behalf of several employees against CTS of Canada Co. and its parent corporation CTS Corp. (collectively, CTS).
Ontario’s Employment Standards Act, 2000 (ESA) and its regulations impose a number of requirements in the case of mass termination. Under the ESA, mass termination provisions apply where an employer terminates the employment of 50 or more employees in the same four-week period. The following requirements apply to mass terminations:
- The employer must give at least eight weeks’ notice of termination;
- The employer is required to give a Form 1 to the Director of Employments Standards, which includes the following information:
- The number of employees at the workplace and the number of employees whose employment will be terminated;
- The date on which terminations will be effective; and
- Whether the employer has implemented or discussed with their employees any alternatives to termination.
- The eight weeks’ notice of termination is not deemed to have been given to employees until the Director of Employment Standards receives the Form 1.
- The employer must post the Form 1 in the employer’s establishment.
CTS did not serve and post the Form 1 information until May 12, 2015. This was more than a year into the notice period provided to employees and less than eight weeks prior to the termination date, June 26, 2015.
The class of employees brought a motion for summary judgment to address three issues in the litigation.
First, the court was asked to determine whether the employer was required to serve and post the Form 1 in April 2014, when notice of termination of employment was given to the employees. The Court of Appeal overturned the motion judge’s finding that the ESA required employers to serve and post the Form 1 when it gave notice to employees on April 17, 2014 and not eight weeks before the effective date of the termination. As a result, the court invalidated the 13 months of working notice CTS provided to employees prior to serving and posting the Form 1. The Court of Appeal disagreed and confirmed that an employer is only required to serve and post the Form 1 at the beginning of the statutory eight week notice period. The Court of Appeal found that CTS was 12 days late in serving and posting the Form 1 and, as such, the employees were entitled to an additional 12 days of pay in lieu of notice.
Second, the court was asked to consider whether parts of the working notice period should be invalidated as a result of overtime hours worked during the notice period. During the working notice period, CTS ramped up production at the plant in order to "bank" inventory, which could be supplied while it shut down the plant in Ontario and set up operations in Mexico. In doing so, several employees worked more than the statutory maximum 48 hours in a work week without approval from the Director of Employment Standards. In addition, the motion judge found that some employees did so involuntarily. The Court of Appeal agreed that this notice was not "reasonable" in that it breached the ESA overtime provisions and did not consider the quality of the employees’ opportunity to find alternate work. This may serve as a warning for employers in all circumstances and not just during mass terminations.
Third, the court was asked to consider whether notice provided to five of the employees who worked more than 13 weeks beyond the original termination date received effective notice of termination in April 2014, despite several extensions to their termination date. The ESA permits employers to continue to provide temporary work to employees for up to 13 weeks after the termination date specified in the notice of termination without giving a further notice of termination. If temporary work exceeds 13 weeks, fresh notice is required and it must be clear and unambiguous, including a final termination date. The Court of Appeal agreed with the motion judge in finding that the five employees who worked more than 13 weeks beyond their original termination date only received common law working notice from September 18, 2015, which was the date on which they received notice of their final termination date, October 30, 2015. The Court of Appeal agreed that multiple extensions to the final date of termination created uncertainty as to when the employees’ employment would terminate and, accordingly, nullified the initial notice given in April 2014.
Watson v. The Governing Council of the Salvation Army of Canada, 2018 ONSC 1066
In the recent decision of Watson v. The Governing Council of the Salvation Army of Canada, 2018 ONSC 1066, the Ontario Superior Court had the opportunity to consider the enforceability of a standard employment release in relation to allegations of sexual harassment.
The facts of the case are simple; their implications, however, are significant. Emma Watson was briefly employed as the manager of a Salvation Army thrift store. Following her termination, she executed a standard form employment release. The release stated, in part, that:
… The Employer and Employee having regard to their respective rights, duties and obligations, have determined that they wish to resolve any and all claims, complaints, actions, disputes etc. between them arising out of the employment relationship or the termination of that employment; …
Subsequent to signing the release, Ms. Watson brought a claim against both her manager and the Salvation Army, alleging that she had been sexually harassed during her employment. Her manager sought to have her claim dismissed on a summary judgment motion, on the basis that she had executed a full and final release.
The Superior Court considered the language in the release and found that the scope of the release was the employment relationship. "While many of the alleged events occurred at the place of employment and, perhaps, because of the employment, sexual harassment, intimidation and other improper conduct are not connected to employment. They are clearly separate matters." Her claim was therefore not barred by the release.
As a result of this decision, it would be prudent for employers to review their standard releases provided to employees upon dismissal to ensure that they are drafted broadly enough to cover claims such as harassment and sexual harassment. It would be recommended to add language expressly releasing any such claims, regardless of whether such a claim is contemplated at the time a specific employee is terminated.
Dawe v. Equitable Life Insurance Company, 2018 ONSC 3130
In 2018, Michael Dawe, 62-year old Senior Vice President with 37 years’ service at The Equitable Life Insurance Company of Canada asked the Ontario Superior Court of Justice to award him 30-months’ notice. The court accepted Mr. Dawe’s position that he had intended to work until retirement at age 65 and that there were no comparable employment opportunities for him. The court considered the particular circumstances of an older employee in a post-mandatory retirement world as factors that should be considered in assessing the notice period. The court awarded Mr. Dawe’s requested 30-month notice period. In fact, the court found that Mr. Dawe should have been allowed to retire "on his own terms" and with no comparable employment opportunities "felt that this case warranted a minimum of a 36-month notice period."
The case raises some interesting questions for employers in managing an aging workforce. In cases with older employees, certain factors in assessing an employee’s reasonable notice period may take on greater weight, such as age and the prospect of re-employment.
This case also provides another example of the courts awarding a notice period over and above 24 months. The Court of Appeal has previous stated that such a limit or cap on reasonable notice should only be exceeded in exceptional circumstances. While it is hard to imagine how Mr. Dawe’s circumstances would be considered exceptional, the case is certainly part of a series of cases in recent years to break through the 24-month reasonable notice "cap".
This is not the first case in recent years to break through the Court of Appeal’s notice cap and it may not be the last.
PART 3 — ALBERTA
Coffey v. Nine Energy Canada Inc, 2018 ABQB 898
In this decision, the employee was dismissed without cause, and sought summary judgment against the employer. The Court of Queen’s Bench upheld the Master’s decision that found summary judgment to be inappropriate for cases where the only issue is the amount of damages for pay in lieu of reasonable notice for wrongful dismissal. Instead, the summary trial process should be used.
The Master’s decision is contrary to a long line of decisions in Alberta that found that the summary judgment process was appropriate. The main consideration was the need for evidence to be weighed. The leading texts and authorities have stated that the assessment of the factors for reasonable notice involves the weighing of evidence, and is not a simple mechanical application of legal principles to established facts. Combined with the Court’s finding that the summary judgment is inappropriate for weighing evidence whether it is before a master or a justice, made summary judgment inappropriate for this type of dispute.
However, the Court still supported the use of summary procedures for this type of dispute. The Court highlighted that in Alberta, summary trial would be the best process in this situation. Summary trial allows for the weighing of competing evidence and conflicting affidavits without the need for a full trial. In fact, summary trial allows for vive voce evidence to be heard as well. As a result, summary judgment will likely be unavailable for disputes over only the reasonable notice period, and summary trial will be the preferred process.
HFIAW, Local 110 and Arcane Industries Inc., Re, [2018] A.W.L.D. 2255, 2018 CarswellAlta 1022
In this decision, a union applied for certification to be the bargaining agent for two employees in the construction unit, and the employer objected to certification. The decision interpreted the new changes in the Labour Relations Code that now allow for the Labour Relations Board to certify a union where the application for certification is based on evidence of membership support of more than 65 per cent of the employees in the proposed bargaining unit.
The two employees were members of the union for many years, but stated that they did not want the union to represent them. In fact, the two employees later cancelled their union memberships. Before the Labour Relations Board received their cancellations, however, the union applied for certification without notifying the employees.
Although the employees opposed the certification, the Board still found that the evidence of the two employees’ memberships in good standing at the time of the application, was evidence of membership support, and sufficient to certify the union. In an alternative argument, the Board had the power to dismiss certification based on any other relevant matter. The employer and employees argued that the fact that 100 per cent of the employees rejected this union’s representation, and the employees did not know the union would file a certification application were relevant matters to be considered in dismissing certification. The Board found those matters were not "any other relevant matter" to be considered to deny certification. As a result, both employers and employees should be aware that unions can be certified simply based on the employees’ memberships in a union.
UFCW, Local 401 and Widewaters Calgary Hotel Management Co., ULC, Re, [2018] A.W.L.D. 2443, 2017 CanLII 95238 (February 7, 2018), and [2018] A.W.L.D. 3242, 2018 CanLII 33689 (April 20, 2018).
In this decision, the union’s key internal organizer was a short service employee, and his employment was terminated after he was late six times in one month, verbally warned multiple times, and after he received a warning letter. The union alleged unfair labour practice in the employee’s dismissal.
This decision interpreted both the reverse onus now required of the employer to prove that a termination was not tainted by anti-union motives, and the ability of the Labour Relations Board to certify a union as a remedy for unfair labour practices.
The Board found the employer’s explanation of persistent tardiness was not a credible or reasonable one, because the employer failed to follow its own discipline policy and to apply its attendance policy consistently, among other irregularities.
The Board’s finding that the employer’s explanation was not credible nor reasonable, and the dismissal of an organizer coinciding in time with union activity also diminished the threshold needed to establish that the employer had knowledge of the union activity and the employee's involvement in the activity. As a result, the Board was able to look to circumstantial evidence to draw the inference that the employer had knowledge of the union activity and the employee's involvement in the activity.
The Board stated the employee’s dismissal caused the organizing campaign to be halted, and had a chilling effect on the support for the union. As a result, the Board ordered remedial certification despite the fact that there was no direct evidence that the employer dismissed the employee as a result of his union activity, and that there was no finding of a pattern of anti-union activity.
Moving forward, employers will face a more difficult task in proving a termination was not tainted by anti-union motives due to the reverse onus requirement.
PART 4 — BRITISH COLUMBIA
Three of the most significant decisions from British Columbia in 2018 involve the issue of just cause: one in which the termination for cause was upheld, one in which it was not, and one in which false allegations of cause resulted in a significant award of punitive damages.
Manak v. Workers’ Compensation Board of British Columbia, 2018 BCSC 182
In Manak v. Workers’ Compensation Board of British Columbia, 2018 BCSC 182, the plaintiff was dismissed for cause for alleged breaches of WorkSafeBC’s confidentiality standards. At the time of termination, the plaintiff worked as a Client Services Manager and ethics advisor. The plaintiff also had responsibility for claims made by WorkSafeBC employees under WorkSafeBC’s own legislation.
The plaintiff advised other employees about various management issues, including advising them about disciplinary meetings before they took place, reasons for discipline, and planned terminations. Further, she shared information about staff claims casually, and without a business purpose. She often started conversations with "Don’t tell anyone because I could get fired, but…" When confronted by WorkSafeBC about these breaches as part of an internal investigation, the plaintiff denied them.
The court noted the unique position that the principle of confidentiality held in WorkSafeBC’s organization, an organization that was simultaneously handling sensitive personal injury claims, including claims by its own staff, and managing staff relations issues in a heavily unionized environment. WorkSafeBC took privacy and confidentiality very seriously, and the plaintiff knew that a breach of the protocols could lead to termination.
Despite that the plaintiff had 36 years of unblemished service, and despite that no actual harm stemmed from the disclosure of the confidential information in question, the court concluded that there was just cause for termination. It stated as follows at paragraphs 79-82:
[79] The plaintiff’s managerial role put her in a position of trust, and required her to serve as a model for other staff... She specifically agreed to be bound by the Standards of Conduct... She was an ethics advisor. Her responsibility for staff claims further heightened the position of trust, being a position specifically structured to maximize confidentiality and to keep other unionized staff from knowing about their colleagues’ claims... The breaches were serious…
[80] The defendant did consider the suitability of alternative measures, but reasonably concluded that the trust relationship was simply too broken... One incident of inappropriate disclosure may have qualified as inadvertence, justifying a reduced disciplinary option… Here, there was a pattern…
[82] Given my finding on credibility, I have found that such disclosures did occur, which leads necessarily to a finding that she was not properly forthcoming during the investigation. Her lack of transparency during the investigation, including her outright denials, add an important and additional level of validity to the employer’s trust concerns…
Klonteig v. West Kelowna (District), 2018 BCSC 124
In Klonteig v. West Kelowna (District), 2018 BCSC 124, the plaintiff, an assistant fire chief with the District of West Kelowna (the District), was dismissed for cause.
While he was off duty and returning home after a "date-night" with his spouse, the plaintiff was pulled over by an RCMP officer for suspected impaired driving. After failing two roadside breathalyzer tests, he received a 90-day administrative driving prohibition, and the vehicle he was driving was impounded. Although the vehicle had a fleet number on its rear tailgate, it bore no other indications that it belonged to the District. On the same day, the plaintiff reported what happened to the Fire Chief — he was honest, distraught and remorseful. At the time, he had an unblemished employment record, and was a valued and exemplary employee.
In asserting just cause, the District argued that the plaintiff’s conduct was incompatible with his duties, in particular, his responsibility for ensuring public safety, and incompatible with the employer’s "business" in that it put the taxpayers at risk for substantial exposure.
However, the court concluded that the District did not have just cause to dismiss the plaintiff and stated as follows at paragraphs 67-72:
[67] While I accept that conduct which occurs while off duty may amount to cause… in my view such conduct must be or be likely to be prejudicial to the interests or reputation of the employer. In this case, Mr. Klonteig was not representing his employer when he engaged in the conduct that led to the suspension of his licence. The vehicle he was driving, although belonging to the District, was unmarked as such. There was no public knowledge of Mr. Klonteig’s administrative suspension.
[68] Further, the conduct was not of the same moral reprehensibility as the possession of child pornography and the attendant extensive publicity which gave rise to cause in Kelly v. Linamar Corp., [2005] O.J. No. 4899 (S.C.J.), or the consorting with a prostitute on company premises and potential breach of privacy which gave rise to cause in Whitehouse, or the dishonest tax scheme engaged in by a chartered accountant and manager of internal audit at a hospital in Hyland v. Royal Alexandra Hospital, 2000 ABQB 458 (CanLII).
[69] I accept that the District’s community members would expect a senior employee, in a department dealing with the protection of the public and public safety, to avoid risk of public harm, I note that Mr. Klonteig was not the public face of the Fire Department. That role fell to Chief Schnitzler. Mr. Klonteig’s role was more administrative.
[70] Further, if Mr. Klonteig’s conduct did not cause the career firefighters in the Fire Department, whose role is to be the first to respond to fire scenes involving impaired drivers, to lose confidence in him, it is difficult to conclude that members of the public at large would do so…
[72] I therefore conclude that Mr. Klonteig’s off-duty conduct was not incompatible with his faithful discharge of his duties or otherwise prejudicial to the interests or reputation of the District, and that his termination was without cause.
The plaintiff was awarded five months’ salary, which was the notice that he was entitled to under his employment contract in the event of a without cause termination.
Bailey v. Service Corporation International (Canada) ULC, 2018 BCSC 235
Significant punitive damages were awarded in Bailey v. Service Corporation International (Canada) ULC, 2018 BCSC 235. In this case, the plaintiff experienced health problems and took a medical leave. In the course of pursuing appeals of the denial of his claims for short-term disability insurance, his employer, Service Corporation International (SCI), terminated his employment without notice. He discovered that he had been terminated when his wife made a claim for medical-related benefits and was informed that they were no longer covered because the plaintiff was no longer an employee.
SCI maintained that the dismissal was with cause at trial, alleging that the plaintiff was absent without leave and refused or neglected to return to work after repeated requests made by SCI. However, the court concluded that these assertions were false. Rather, SCI had approved the plaintiff’s absence, and then retroactively decided to treat the denial of the plaintiff’s claim for short-term disability benefits as equivalent to a determination that he never should have been on leave in the first place, and thus as justification to fire him. The court ultimately concluded that SCI had no cause for dismissal.
With respect to damages for wrongful dismissal, the court concluded that there was an enforceable limit of eight weeks’ notice contained in the plaintiff’s employment contract.
With respect to aggravated damages, the court concluded that due to the difficulty in parsing out the causes of the plaintiff’s mental distress, it was unable to award a significant sum for aggravated damages. As such, it awarded $25,000.
With respect to punitive damages, the court easily concluded that SCI’s conduct was harsh and reprehensible, and that its motives were malicious and vindictive, because it was not honest for the reason for termination, it persisted in trying to find cause for termination, and maintained these meritless allegations from the time of termination through trial. Further, SCI knew that the plaintiff was sick and was suffering from mental distress and rather than dealing sensitively with him, chose to treat him cruelly. The court ultimately awarded punitive damages of $110,000.
In part, the court awarded significant punitive damages because SCI had chosen to impose quite ungenerous terms of dismissal on its employees, which put SCI in a position of being able to make a calculated choice to treat employees abusively when firing them, as employees would seldom be willing to risk the costs of litigation. This suggests that a significant award of punitive damages may be more likely in cases involving employers who restrict employees' entitlement upon termination to the minimums under applicable employment standards legislation.
Other
Another decision of note is Rosas v. Toca, 2018 BCCA 191, which we summarized in our July newsletter. In this case, the British Columbia Court of Appeal concluded that, when parties to a contract agree to vary its terms, the variation should be enforceable without fresh consideration, absent duress, unconscionability, or other public policy concerns. However, this case was decided in the context of an unpaid debt, and has not yet been applied in the employment context.
