- overturned the trial judge's award of $100,000 in punitive damages;
- upheld the trial judge's award of $25,000 in consequential damages;
- upheld the trial judge's decision to not award moral damages; and
- remitted the matter back to the BC Supreme Court to determine the notice period.
This appears to the second written employment law decision issued by the BC Court of Appeal in 2010. The first was Davidson v. Tahtsa Timber Ltd., 2010 BCCA 12, which dealt with a procedural matter.
Background read more »
(Note: In a recent Saskatchewan case - Fox v. Silver Sage Housing Corporation, 2008 SKQB 321 - it was found that an employee was not bound by the termination provisions in a policy manual that had been introduced 13 years after he commenced employment.)
Employee’s refusal to extend Return to Work Agreement, acknowledge alcohol dependency, not just cause
In Taylor v. New Westminster (City) (Vancouver Registry S084283, August 19, 2009), the court found that the employer did not have just cause to dismiss an employee who refused to sign an extension to a Return to Work Agreement that required him to acknowledge that he had an alcohol dependency.
At the time of his dismissal, the employee was 54 years old, had 16 years of service and earned a salary of approximately $90,000 per annum. He was Manager of Fleet Services, a safety sensitive position in that he supervised a team of mechanics who performed maintenance and repair work on the employer's various vehicles, including those for the fire and police departments.
Until February 2007, the employee had "an excellent work history" and the employer had "no concerns about his safety in the workplace" (para. 9).
The Incident read more »
Employee’s treatment for drug addiction/fragile health factored into calculation of reasonable notice period
In Pereira v. The Business Depot Ltd., 2009 BCSC 1178, the court factored in the employee's recent release from a drug addiction treatment centre, and his vulnerable state of health generally, in determining the reasonable notice period.
The employee started working at Staples in 1997, after being recruited from another company. He was eventually promoted to general manager of the Nanaimo location.
Prior to June 2003, he was regarded as a good performer. However, starting at this time his professional conduct took a dramatic turn, as was repeatedly late for work, sometimes would not show up at all or would leave mid day for extended periods. The employee eventually advised his district manager that he was depressed, fatigued and very unwell. read more »
In Mackie v. West Coast Engineering Group Ltd., 2009 BCSC 1775, the 48 year-old middle manager with 21 months service and an annual base salary of $57,500, was awarded a notice period of nine months.
The court noted that the law is clear that a dismissed employee cannot be compensated in damages for the loss of a job or for the pain and distress that follows as a result of the dismissal. The court also stated that the "unique" factor relating to the impact of the dismissal on the employee's family was not one to be given much weight in determining the length of the notice period.
That said, the manner in which the employee was dismissed and the impact it had on him and his family were undoubtedly what led to the court to award a notice period of nine months, which was at the high end of what the employee was seeking. Specifically: read more »
Sexual harassment allegations not supported but abusive behaviour by manager led to constructive dismissal
In Cooke v. HTS Engineering Ltd., 2009 CanLII 73907 (O.N.S.C.), the court found that the former employee's allegations of sexual harassment were not supported, but that the manager's abusive behaviour supported a finding of constructive dismissal.
By way of contrast, in a recent decision out of Alberta - Pawlett v. Dominion Protection Services Ltd., 2008 ABCA 369 - the Alberta Court of Appeal upheld the trial judge's decision that sexual harassment by the boss led to a constructive dismissal.
In Stastny v. Dependable Turbines Ltd. 2009 BCSC 1648, the court addressed the notice period, a claim for unpaid overtime and a claim for aggravated or punitive damages.
The 51 year old machinist with 20 years service was dismissed without cause. The court awarded him a notice period of 15 months. The fact that the employee had been laid off and rehired on several occasions did not, the court concluded, effect the duration of his employment for the purposes of calculating his notice period.
The employee had regularly worked more than 40 years a week but had not received overtime pay. This was confirmed by time sheets produced by the employer, which showed that the employee only received his regular wage for overtime hours worked. The employer argued that it had an agreement with the employee to this effect. read more »
Double costs awarded against employer for failing to accept employee's settlement offers in wrongful dismissal case
In Hutson v. Michaels of Canada, ULC, 2009 BCSC 1587, the court awarded the dismissed employee "double" court costs because of the employer's failure to accept the employee's pre-trial settlement offers.
The decision dealing with the merits of the wrongful dismissal lawsuit was delivered orally by the BC Supreme Court on September 18, 2009. This decision does not appear to be reported. The decision dealing with the costs award is reported and offers some information about the merits of the lawsuit.
The employee was dismissed for just cause on August 29, 2005 because of an altercation with/alleged assault on another employee. He had approximately 12 years of service.
In October 2005, the employee (through his lawyer) offered to settle the matter for $100,000. The employer did not accept the offer.
In January 2006, the employee commenced his lawsuit. read more »
Fraser Milner Casgrain LLP has published "The Wrongful Dismissal Manual" (October 2009), which is "designed to provide employers with guidance on the general statutoryand common law principles applicable whenever an employee's employment is terminated in Canada's four main business jurisdictions: British Columbia, Alberta, Ontario and Quebec."