Month: January 2020

In Rice v Shell Global Solutions ( 2019 ABQB) Eamon J. had a situation where an employee who had already worked for the defendant for about 8 years under a number of different fixed term and indefinite term agreements, was offered a new position which had the following language :

Your Assignment Length will be : 4 years.

She was let go without cause 10 months later and was provided with working notice and termination pay for another 3 months. She found new employment 7 months after her notice of termination.

The Judge had to decide what meaning to put to the reference to 4 years. This is how the Judge sets out the alternative interpretations

In Dengedza v CIBC ( YM2707-10905) Adjudicator Montieth in a CLC Unjust Dismissal complaint had to determine whether or not a former senior  investigator with the Bank was entitled to not have his mitigation earnings affect his 14 month notice award.

In his job at the Bank, the Complainant earned $62,379 for presumably a 40 hour work week. After his dismissal he worked 60 hours a week as an UBER driver and made $600 a week or $31,200/ year. This works out to $10/hour as opposed to the $30/hour that he was making at the Bank.

The Adjudicator then applied the test in Brake v PJ-M2R Restaurant ( 2017 ONCA 402) which stands for the proposition that post termination income that is “minimal, trivial or inconsequential ”  should not be considered as mitigation earnings.

Even though the UBER income was 1/3 of his Bank income, the Adjudicator found that these amounts were sufficently large enough to be characterized as amounts received in mitigation of loss.

My Comments :

I think the Adjudicator approached this analysis incorrectly.

He seemed to look at the weekly earnings without regard to the hourly rate. Sure, the Plaintiff earned about 50% of his former income on a weekly basis but that is only because he worked 50% longer every week.

Moreover, as the Complainant was making $4.00 less than the ESA minimum wage driving for UBER, it seems somewhat inappropriate to find that these UBER earnings did not qualify as ” minimal and trivial “.

In other words the comparison should be based on the hourly rate, not on the weekly income. Effectively the Complainant was working 1/3 of his former rate . No Court would require an employee to mitigate his losses by taking a job at 1/3 of his previous rate, especially when that rate itself was below the minimum wage .

In effect the Complainant was punished for taking the crappy UBER job, and the Bank got a windfall because its former employee needed to eat and put a roof over his head.

Although there is no reference to this in the decision, it seems likely that as the Bank alleged just cause, the Complainant  probably did not get EI. Had he received EI, that amount would not have reduced his damage award, although in certain circumstances he may have had to repay some or all of it to the Government.

In Durant v Aviation A. Auto ( 2019 NBQB 214 ) Justice LeBlanc had a situation where a 34 years service advisor at a car dealership took secret videos of  female clients and shared them with co-workers. The Plaintiff’s explanation that he was doing it to protect the dealership was not accepted by the Judge.

The Judge considered the following factors in determining   whether there was just cause.

The nature and extent of Mr. Durant’s conduct on August 30, 2018, is  the following:

1. He surreptitiously took a first video of the female client in attendance at the Audi Moncton premises for improper purposes;
2. The first video was taken with his work issued tablet computer;
3. He surreptitiously took a second video and a photograph of the female client with his personal cellphone;
4. He showed the first video to several co-workers while making inappropriate comments, including mocking the female client;
5. He showed the second video to Audi Moncton employee Justin Guimond while making inappropriate comments about the female client;
6.   Over the course of the labour day weekend, he texted the photo of the female client on his cellphone to his co-worker, Mr. Donovan.

In deciding that just cause had been proven the Court made the following comments :

For the reasons already given, a consideration of the full range of misconduct leads to the conclusion that it was very serious.  That misconduct, the invasion of the female client’s privacy and the derogatory comments made during the subsequent viewings of the video, were incompatible with Mr. Durant’s employment obligations toward Audi Moncton.  No plausible explanation was offered for the misconduct and none is evident on an examination of the evidentiary record.

  Durant’s misconduct on August 30, 2018 is very serious as a stand alone incident but it is made more egregious considering that he had been warned of the inappropriate nature of similar conduct in the past, i.e. the warning letter issued in relation to the November 2014 incident and the discussion with Mr. Hambrook in January 2018.  In addition, after August 30, 2018, it came to light that the very behaviour shown by Mr. Durant on August 30, 2018, had occurred several times in the past. 

My Comments :

I take 3 things from this case :

1. The conduct of the plaintiff was obviously throughly obnoxious and disgusting.
2. His failed attempt to justify his behavoir, as opposed to apologizing for it, hurt his otherwise slim chance of winning.
3. The fact that he had been previously warned about similar behaviour sealed his fate.

One can see that if this was the first and only time in 34 years  that he acted in this fashion and if he accepted  responsibility from the beginning, the result may have been very different.

Patruniuk v Candu Energy ( YM2707-11352) Arbitrator Price in a CLC unjust dismissal case had a employee who repeatably refused to take a refresher course in basic radiation protection. Despite numerous meetings to hear his concerns, he still refused . Finally he  he was told by email that if he did not complete the training that day, he would be fired .

The employee did not see the email until after work on that same day .

He was fired the following day, which was a Friday

However, after finally seeking legal advise, the employee, on the Tuesday following his dismissal  emailed his employer an apology and agreed unconditionally to take the training, which was a one hour computer PowerPoint exercise.

The Complainant at the hearing wisely admitted that he had been insubordinate but simply argued that dismissal was not warranted but rather he should have received some lesser degree of discipline.

In deciding to reinstate the employee with a two month suspension, the Adjudicator took the following matters into account:

1. The insubordination was of of a minor nature which was only tangentially related to his job duties.
2. He did not openly challenge management in front of other employees.
3. The employee remained civil in his dealings with management.
4. The workplace encouraged employees to adopt a ” questioning attitude “
5. The Employer never used progressive discipline. The fact that upon termination he immediately apologized and agreed to take the training was seen as evidence of the fact that a lesser penalty would have modified his behaviour.
6. The employment relationship was not irredeemably fractured.

My Comments :

It must be remembered that reinstatement with a suspension is a remedy open to CLC Adjudicators, but not judges in a civil action.

This case also illustrates the wisdom of not trying to argue the impossible. Some  lawyers would have attempted to dream up some bizarre rationale for their clients behavoir and only when that argument failed, would they argue  for a lesser penalty.

It is a much better tactic to admit the wrong and argue the penalty. Judges and arbitrators so rarely see people taking responsibility for their misdeeds that when they actually encounter it, they will often exercise their discretion and do something to lessen the blow of the termination.

In O’Reilly v Imax Corp ( 2019 ONCA 991) the Court was faced again with the issue of what type of language in a bonus or stock option plan effectively denies the dismissed employee compensation for these elements over the notice period .

The exact wording under review was as follows