In the wrongful dismissal case of Lewis v. Lehigh Northwest Cement Limited, 2009 BCCA 424, the BC Court of Appeal addressed the manner in which special allowances, discretionary increases in salary and pension benefits should be treated over the notice period. It also discussed the duty the mitigate and the awarding of costs.
The appellant employee had been employed by Lehigh Northwest Cement Limited ("Lehigh") for 26 years. He was the manager of computer systems. He was dismissed without cause in 2006 following a 28 month medical leave of absence because there was no position for him to return to. He was 58 years of age. Lehigh offered him a severance package equal to 15 months salary, which he declined.
At trial, he was awarded 22 months notice, which equalled about $200,000, and about 30% of his costs (see Lewis v. Lehigh Northwest Cement Limited, 2008 BCSC 542). read more »
Notice period reduced on basis employee might find new employment after trial but before end of notice period
In the Jamieson v. Finning International Inc. 2009 BCSC 861 wrongful dismissal case, the 53 year old former employee had 20 years of service and had been the Millyard Systems Manager when his employment was terminated due to 'economic events". The company offered him a severance package based on a 12 month notice period, which he rejected.
The BC Supreme Court awarded him a notice period of 19 months, but reduced it by one month in consideration of the fact that the legal action had been pursued by way of a summary trial just 6.5 months after the employee had been dismissed and the employee might find new employment before the end of the 19 month notice period
The parties were in agreement that the employee's compensation over the notice period should be based, among other entitlements, on $84,000 in base salary and a $10,920 annual bonus. read more »
Taryn Mackie, a lawyer at Bull Housser Tupper in Vancouver, has prepared a paper entitled, "Rightsize, without going Wrong: Recognizing Issues with Downsizing and Severance Pay" (June 2009).
In Marshall v. Old Meets New Furniture Ltd. dba Stokes Furniture, 2009 BCSC 748, the BC Supreme Court discussed the evidence required to prove that an employee has failed to take reasonable steps to mitigate her loss in relation to a wrongful dismissal matter. The court also discussed the impact of a depressed economy on the notice period.
The employee was 46 years old and had seven years of service at the time her employment was terminated in June 2007. She had been manager of a retail furniture store, earning approximately $65,000 per year.
The employer alleged at trial that it had cause to terminate the employee based on poor job performance, dereliction of duty, and insubordination. However, at the time of dismissal it had provided the employee with seven weeks pay in lieu of notice pursuant to the Employment Standards Act and a positive letter of reference.
Notice Period read more »
In Chapple v. Umberto Management Ltd., 2009 BCSC 724, the 38 year old plaintiff was a manager at Il Caminetto restaurant in Whistler with 13.5 years of service when her employment came to an end in January 2007. She was earning a base salary of approximately $50,000 per year, plus gratuities.
The employer argued that the plaintiff had been suspended and then failed to return to work. The court, however, found that her employment had been terminated.
The court awarded the plaintiff 15 months notice, pointing to the following features which it stated led to a somewhat longer notice period than the plaintiff's length of service justified: read more »
Senior employee's refusal to submit budget with head office's desired profit projections not cause for dismissal
In Adams v. Fairmont Hotels & Resorts Inc., 2009 BCSC 681, the BC Supreme Court found that the employer did not have cause to dismiss a senior employee because of her refusal to prepare an annual budget that that included the employer's desired profit projections.
In doing so, the court reviewed the law on insubordination, and when it can amount to cause for dismissal in light of the "contextual approach" that was mandated by the Supreme Court of Canada in McKinley v. BC Tel, 2001 SCC 38.
The plaintiff was the General Manager of a hotel that was part of a luxury chain. At the time her employment was terminated she was 41, had 12 years of service and was earning approximately $150,000 per year (exclusive of bonuses and benefits).
The hotel chain's corporate office (the "employer") alleged that it had cause to dismiss the plaintiff for insubordination because: read more »