Court Reduces Notice by 2 Months Due to Poor Mitigation.:

In Toy v. 0954516 BC Ltd.,( 2022 BCSC 1161) Justice Walkem intially awarded 5.5 months notice to a 61 years old Fuel Attendant with 5 years service making $40k.

However when she found out that over a 12 month period he only applied to 3 jobs by looking on his computer and by driving around and looking for Help Wanted signs the Judge determined that this was not reasonable and therefore she cut 2 months off the notice period.

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CIRB Determines How to Calculate damages in Lieu of Reinstatement:

In Szabo v CP Rail ( 2202 CIRB 1019) Adjudicator Asbell determined that the Complainant , who was a Train Master, was terminated without just cause as the penalty of termination was too severe and because CPR did not follow the principles of progressive discipline .

Recognizing that tye employment relationship was unlikely to be reestablished , the Adjudicator assessed damages in lieu of reinstatement  as follows:

  1. He was awarded all of his back pay from date of termination to the date of the award ( approximately 24.5 months) less a one month suspension.
  2. He was also awarded damages for the loss of  secure employment in the future. This is based on the theory that had the employee not been unjustly dismissed he would have kept the job for a long time, perhaps even to retirement and therefore should be compensated for this future loss. There are course various contingencies to be taken into account, such as the employee may have quit this job for another job, he might have had to stop working due to poor health or death.
  3. However, if he  were reinstated there is a strong likelihood that he would have been terminated for just cause in the future. This is what the  adjudicator  said :
  4.  First and foremost, the parties here both agreed—without the need for determination—that the employment relationship was irreconcilably fractured. Mr. Szabo did not agree with the attitude exhibited by senior management within CP, and senior management within CP did not agree with Mr. Szabo’s attitude, both prior to the events leading to his dismissal and at the hearing itself. The Board accepts that both parties’ very negative attitudes towards each other would have likely persisted to the detriment of the employment relationship had Mr. Szabo been returned to work. At the hearing itself, Mr. Szabo conducted himself with the utmost confidence and was unafraid to attack, and accuse, the senior CP witnesses. Whether right or not, and whether overly aggressive or not, the style of questioning exhibited by Mr. Szabo appeared to leave at least a couple of the members of the senior team less than enthralled with him. If there was any possibility of an amicable return prior to the cross-examinations, such possibilities were quickly squelched. While admittedly speculative, the Board has little doubt that CP would have issued further letters addressing Mr. Szabo’s attitude and that his bonus would have continued to receive deductions as a consequence. The Board also has little doubt that CP would have learned a lesson about progressive discipline in relation to Mr. Szabo and at the first hint of conduct it viewed as problematic would have begun a series of performance management measures likely leading Mr. Szabo into a just dismissal situation, as it would be highly unlikely that Mr. Szabo would change his approach or attitude toward any of CP’s senior management. Alternatively, and more likely, Mr. Szabo would have told the senior CP management he had “had enough of their BS,” as the Board quoted him during the hearing, and either negotiated his own departure or simply found another job in the interim. Just as Arbitrator Surdykowski found in Lakehead University, the Board finds it is a virtual certainty that Mr. Szabo would very soon have been in workplace hot water again, one way or the other, and that CP would have successfully terminated his employment, or he would have voluntarily left long before he reached retirement age. 
  5. He was awarded 16 months pay for this part of the loss for a total of about 39 months .

My Comments :

There are a few important lessons to be be learnt here.

  1. The Complainant was self represented. No competent  lawyer would let him rant on about how horrible senior management at CPR was. He would instead have testified that he admits he made a serious  error of judgment, that he has  learnt his lesson , that he loves his job and desperately wants a second chance. Judges and adjudicators love remorse.
  2. It is amazing how the adjudicator  can predict the future with such precision.
  3. How a party acts at a hearing can have a profound effect on the decision maker. The better the actor, the better the outcome. When I was counsel I always had to remember that the judge only sees my client for a short period of time whereas I have known him to be a not so truthful person for years. First impressions matter very much in Court.
  4. The other method of determining damages for loss of job security is the Notice Method which in the words of the Adjudicator :” The Notice Model provides a “gross up” for the value of collective agreement benefits from that typically given by the courts in wrongful dismissal cases. In this sense, and as noted by Arbitrator Hornung in Teamsters Canada Rail Conference v. Canadian Pacific Railway Company, 2021 CanLII 30674 (CA LA) (Hornung), this model “provides a more exact and measurable tool in order to assess the variables at play and avoids the need for clairvoyance” (see paragraph 25). 

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Refusing to Wear a Mask and Then Being Put on Leave Without Pay is NOT a Constructive Dismissal :

In Benke v Loblaw Companies Limited, 2022 ABQB 461 Justice Feasby had a situation where an employee who was required to routinely visit stores refused to wear a mask or a face shield and did not provide medical evidence to back up his claim.

Instead of terminating him, the Defendant put him an unpaid leave of absence and continued up to the date of the trial to maintain that he was still an employee and could return to work now that the mask mandate was lifted.

The Court found that the Plaintiff was not constructively dismissed as the Defendants action in putting him on a leave of absence without pay was reasonable as it was the Plaintiff’s voluntary decision not to comply with the policy.

The Court held that the Plaintiff had resigned.

Many employers have chosen this technique of using a leave of absences without pay instead of termination with just cause to deal with person who refused to vaccinate contrary to a policy. This case gives support to that position .

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