In Bishop v Rexel Canada ( 2016 BCSC 2351) Justice Burke held that reasonable notice for a 61 year old buyer with 27 years of service was 20 months.
The Court first found that the Plaintiff had not resigned and that the Employer had taken advantage of his emotional state when he said that he was quitting.
After the Plaintiff counsel in a letter to the Employer stated that his client had not resigned, the Employer immediately offered to reinstate him with full back pay, which the Plaintiff refused, claiming that it was unreasonable for him to return to the workplace.
The Court upheld the Plaintiff’s decision not to return for the following reasons:
- The Employer testified that had he agreed to be reinstated that there was a significant likelihood that he would be laid off later in the year in any event.
- He had been poorly treated at the time he was terminated, included being escorted out of the office part way through his shift and also the fact that the Employer had purported to accept his resignation letter, when in fact he had never submitted such a letter.
The Judge concluded that ” Unfortunately, there was clearly a breach of trust and some animosity between the parties. Therefore I conclude that this is not one of those rare cases where the employee should have accepted re-employment in order to mitigate his losses.”
It is interesting that the judge uses the term ” rare cases” in a way that seems to assume that an employee does not have to return to work from the same employer who just fired him, unless the Employer can prove that it would be unreasonable not to do so.
Does this mean that the onus of proof is upon the Employer to show that the return to work offer is a reasonable one or does the Employee have to show that to return is unreasonable?
Perhaps this judge, unlike the Supreme Court of Canada in Evans v Teamsters ({ 2008} 1 SCR 661) , realized the absurdity of forcing an dismissed employee to return to work from a place that he was just wrongfully dismissed simply because the employee had the audacity to hire a lawyer and question the compensation being offered by the Employer for the dismissal.