Month: January 2021

In Barrett v Bragg Communications ( CLC Adjudication , no cite available ) Adjudicator Starkman upheld the discharge of mobile tech who did the following misdeeds:

1. Used the company vehicle for personal use, contrary to policy.
2. Over a 4 week period used the company cellphone on company time for over 60 hours, many of which were personal calls.
3. Took may extra long lunch breaks.
4. Created false entries in his time log tp cover up his extended lunch breaks outside of his service area.

But for the false logs, it appears that the adjudicator might have found that the penalty of discharge was too severe and would have substituted a lesser penalty, which unlike a judge, he had the power to do. But the false logs put his behaviour over the top and the discharge was upheld.

Of note the worker had a previous discipline record of a one day suspension which contained a final warning. He was a 7 year employee.

In Hunsley v Canadian Energy Services ( 2020 ABQB 724 ) Poelman J. dealt with an supervisor in the old and gas industry, which the Court noted that the parties agreed that at the time of termination the industry was facing ” challenging financial circumstances”.

This is what the Court said :

[26] Adverse economic conditions tend to increase the notice period because they usually contribute directly to the estimated time required to find replacement employment.

A depressed economy or sector tends to lengthen the notice. But is only one factor and should not be given disproportionate effect: ibid,

[28] The amount of reasonable notice must be determined based on circumstances at the time of dismissal, not subsequent events or length of actual unemployment.

The court went to award a supervisor / lower manager with 7 years and 7 months service and 34 years of age an eight month notice period .

 

In Yee v Hudson’s Bay ( 2021 ONSC 387) Justice Dow was considering the proper notice period for a 62 year old Director of Product Development with 11.65 years service.

The plaintiff was laid off in August of 2019 ( pre COVID). When asked by the Plaintiff to award a longer period of notice because of the difficulty of getting a job in retail in the midst of a pandemic, the Court distinguished those cases where the employee was let go before COVID but his notice period was during COVID and those who were terminated during COVID. This is because ” Notice is to be determined by the circumstances existing at the time of termination and not by the amount of time that it takes the employee to find employment”

The Court awarded the Plaintiff 16 months notice.

At first blush this distinction seems illogical because. whether you were fired a day before the pandemic or the day after would have no effect on how long it may take you to get another job. However this decision is consistent with previous decisions where Courts have ignored post termination events in assessing the proper notice period. The policy reason behind this is the theory that the parties should be able to both assess the issue of notice at the time of termination. This is intended to promote certainty because if post termination events affected the notice period , then presumably you could never ascertain the correct notice period until it was over.

However there are certain exceptions to this rule because the notice period can be less than the reasonable  notice period in at least three cases:

1. The employee fails to properly mitigate his or her damages.
2. The employee succeeds in finding a new job before the end of the notice period.
3. The employee dies within the notice period.

Q: Do you notice any themes to these exceptions ?

A: They all benefit the employer.

In Wilson v John Howard Society ( 2020 ONSC 5531) Bondy J. ruled that the defendants’ Rule 49 offer which was accepted by the plaintiff was enforceable even though there were some minor issues not covered in the offer as follows:
1)The plaintiff wanted the $2,221.50 characterized as retiring allowance whereas the defendant wanted to treat it as wages. This made a tax withholding difference of about $363.
2) The plaintiff wanted the entire amount allocated to legal fees. The defendant refused because that is not what the Rule 49 offer said.
3) The offer was not clear as to would pay for the dismissal order.

The Judge rejected al these arguments.

1) The characterization was agreed to in the Rule 49.
2) The amounts were properly characterized in the Rule 49 offer and thus could not be changed unilaterally.
3) The implication from the Rule 49 offer was that the defendant would take out and pay for the dismissal order.

The Plaintiff got a judgement for $4,037. The Defendant was awarded costs to be determined.

Question : At the end who won?

What this case was really about was a plaintiff who wanted to back out of a deal that she had originally agreed to. This case reinforces the idea that ” settlements are sacred” and any attempt to weasel out of a deal made when both parties are represented by lawyers is basically a fools’ game.

This case reminds us of the importance of making sure that settlements should be fully documented and signed on the spot. In my mediations, I strongly encourage   the parties execute full settlement agreements, including releases, at the end of the mediation. To do otherwise allows either  one reluctant party to try to back out or the realization that the parties had not really agreed on important issues like allocation, confidentiality, non disparagement clauses and the like.

Experienced counsel come to a mediation with draft settlement documents that can serve as a basis for the finalized documents.