In Miller v Integrated Health Clinic ( 2016 BCPC 440 CanLII) Provincial Court Justice Chettiar had to determine the proper notice period for a 23 year old part time lab tech with 17 months service making about $26,000 a year .
In a remarkable 16 page decision he made a number of interesting comments about the task of determining notice periods for short service employees in BC.
First of all these are his comments that the Judge made when presented with Court awards from common law provinces across Canada :
22. I agree with the Defendant’s counsel that it is not necessary to look to cases outside of British Columbia to draw comparables to the present case. There is nothing unusual in the Claimant’s circumstances that guidance cannot be drawn from other BC cases. Therefore, I will not address the non-BC cases the Claimant’s counsel refers to. Besides, the Defendant’s counsel says all of the cases the Claimant relies on are distinguishable from the case at hand.
More importantly he views that all the law regarding notice periods for short service employees starts with the 2009 decision of the BC Court of Appeal in Saalfiel v Absolute Software Corp ( 2009 BCCA 18 ) and that prior cases are not to be considered.
First of all, he says only three of the eight cases are British Columbia cases, and all three of them predate the Saalfeld case which clearly dispelled the notion that five to six months is the normal range of the notice period for short service employees. The court in Saalfeld at para. 15 said as follows:
[15] … the respondent [employee] submits that recent jurisprudence supports a notice period of five to six months in short service cases. While B.C. precedents are consistent that proportionately longer notice periods are appropriate for employees dismissed in the first three years of their employment, I see little support for the proposition that five to six months is the norm in short service cases for employees in their thirties or early forties whose function is significant for their employer, but not one of senior management. … Absent inducement, evidence of a specialized or otherwise difficult employment market, bad faith conduct or some other reason for extending the notice period, the B.C. precedents suggest a range of two to three months for a nine-month employee in the shoes of the respondent when adjusted for age, length of service and job responsibility: [case citations omitted].
In the Saalfeld case the Plaintiff was 35 years old, and had 9 months service is a sales position. The Court of Appeal upheld the trial judges assessment of notice at 5 months, recognizing that she took 9 months to find a job.
In this case the Plaintiff was unemployed for 7 months. The judge found that her mitigation was reasonable .
One would have thought that the judge , having quoted Saalfed , would have followed it and awarded between 2 or 3 months notice.
After all Saalfeld was 35 years old and Ms Miller was 23, both young.
Saalfeld had only 9 months service but Miller had almost double that time , namely 17 months .
Both had non-managerial jobs.
Saalfeld was unemployed 9 months, Miller 7 months .
Oh, by the way, Ms Miller was terminated as soon as she came back from her maternity leave. Great time to be looking a for a job.
What did Justice Chettiar award as notice : 6 weeks.
Quere? Why quote your own Court of Appeal and then not follow it ?