B.C. Courts Award Longer Periods of Notice to Short Service Employees
By: Michelle Quinn2018 has seen a series of decisions from the courts in BC which illustrate that short-term employees can be awarded longer periods of notice than their counterparts with lengthier terms of service. Generally speaking, long service imports a relatively long notice period, but short service does not require that the notice period be proportionately shorter. In this post, we take a closer look at those decisions.
The Facts
In the very recent decision of Corey v. Kruger Products L.P., 2018 BCSC 1510, the BC Supreme Court awarded 8 months of severance to the plaintiff employee, Mr. Corey, when he was terminated after two years and seven months from the defendant employer, Kruger Products L.P. (“Kruger”).
Mr. Corey was 55 years old when he was hired as a Maintenance Supervisor by Kruger. He was terminated without cause on March 15, 2018 at the age of 57. Within days of his termination, Mr. Corey engaged a career coach and began searching for alternative employment. He expended considerable efforts in his job search and attended numerous job interviews without much success. At the time of the hearing in August 2018, Mr. Corey had not secured comparable employment.
The issues before the Court were as follows:
a) What was the reasonable notice in the circumstances of this case?
b) What were Mr. Corey’s damages?
In assessing the reasonable notice period, the parties relied on the well-known factors identified in Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 and Ansari v British Columbia Hydro and Power Authority (1986), 2 B.C.L.R. (2d). The factors are:
a) Character of employment;
b) Length of service;
c) Age of the employee; and
d) The availability of similar employment.
The Decision
After two years and seven months, Mr. Corey was a relatively short service employee. Mr. Justice Gomery considered all of the Bardal factors, however, given the facts of this case, in particular, the connection to age and the availability of similar employment, sometime was spent addressing these factors in his analysis.
The Court held:
[47] The inference drawn in many cases, including judgments of the Supreme Court of Canada, that persons in their late 50s and 60s may expect to have greater difficulty finding alternate employment, is often a matter of common sense. Such persons have fewer years of service to offer prospective employers.[48] Kruger employed Mr. Corey in a traditional occupation, supervising the maintenance of heavy industrial equipment. In my opinion, it makes sense to infer that Mr. Corey’s age is a relative disadvantage for him in obtaining alternative employment as a Maintenance Supervisor.
[49] Mr. Corey’s lack of success in his job search to date is evidence from which a limited availability of alternate employment may be inferred.
…
[50] Taking all this into account, I conclude that Mr. Corey’s age and the lack of availability of suitable alternate employment justify a somewhat longer notice period than would otherwise be the case.
Mr. Justice Gomery awarded Mr. Corey damages in the amount of $83,716.06 which comprised of reasonable notice of 8 months, overtime, pension contributions and benefits.
Similar Recent Decisions in BC on Short Service Employees
Greenlees v Starline Windows Ltd., 2018 BCSC 1457 (“Greenless“)
The case of Corey was released on September 4, 2018, right on the heels of the B.C. decision of Greenlees, which was released on August 29th. In this case, Mr. Justice Gomery awarded a sales professional six months’ severance when he was terminated after six months of employment with Starline Windows Ltd (“Starline”).
The terminated employee, Mr. Greenlees, was 43 years old at the time of his firing, and like Mr. Corey, on termination he immediately started to look for other work. He registered with three recruitment/placement firms and applied to at least 42 companies, including every company in the window sales industry of which he was aware. He was unemployed for seven months.
In finding that Mr. Greenlees was entitled to six months’ notice, the Court considered his mitigation efforts, and the fact that there was some inducement by Starline.
I had the opportunity to speak with counsel for Mr. Greenlees, Ms. Lia Moody, who had the following to say about this decision:
Pakozdi v B & B Heavy Civil Construction Ltd., 2018 BCCA 23 (“Pakozdi“)
The BC Court of Appeal decision of Pakozdi was released on January 19, 2018. The terminated employee in this case, Mr. Pakozdi, was employed as a bid estimator for a civil construction company for a period of 12 months. He was 55 years of age when he was terminated without cause. The Court of Appeal upheld the decision of the trial court judge to award a notice period of five months.
Key Takeaways
These decisions demonstrate that the BC courts may award considerable notice periods to employees with short service. For employers reviewing these decisions all is not lost in that one way to effectively reduce legal liability is to use termination of employment provisions in employment offers and contracts.
If you have any questions about these cases and this particular area of law please contact any member of the Employment and Human Rights Group
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The COVID-19 pandemic has changed the landscape of our the British Columbian economy and the workforce in a variety of ways. As we enter Phase 4 of BC’s Restart Plan can an employer mandate that their workers be vaccinated? In a recent decision BC Hydro and Power Authority v International Brotherhood of Electrical Workers, Local 258, 2022 CanLII 25764 (BC LA), it appears that may be the case. However, the purpose of the employer and whether their services are considered to be essential services, as well as the competing interests of the opposing parties, seems to have been key considerations taken into account by the arbitrator.
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BC employers and employees should take note that BC has raised its minimum wage from $14.60 per hour to $15.20 as of June 1, 2021, making the province’s base rate the second highest in the country. This change also increased the minimum wage for liquor servers, who were previously excluded from the general minimum wage.
