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Notice Period

Senior employee's refusal to submit budget with head office's desired profit projections not cause for dismissal

Jurisdiction: - British Columbia

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.

Background

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 »

Determining whether a worker is an employee or an independent contractor

Jurisdiction: - British Columbia

In the recent decision in Smith v. Centra Windows Ltd., 2009 BCSC 606, the BC Supreme Court reviewed the legal principles that will be applied in determining whether a worker is an employee or an independent contractor. Specifically, the court noted:  read more »

Downsizing and Sale of a Business Unit

"Downsizing and Sale of a Business Unit" is the title of a paper prepared by a lawyer at Clark Wilson LLP in Vancouver.

It provides a comprehensive overview of issues to consider when terminating/transferring employees as part of a corporate transaction and ends with a useful summary of "what the vendor wants" and "what the purchaser wants" in order to minimize their respective exposure to claims by employees. 

You can find the paper at the link below.

Employee's actions do not support finding of unequivocal resignation or abandonment of employment

Jurisdiction: - British Columbia

The court in Koos v. A&A Customs Brokers, 2009 BCSC 563 stated that in the circumstances of this case, it could not find that a reasonable person would have regarded the actions of the plaintiff former employee as an unequivocal resignation or an abandonment of employment.

As such, the court concluded that the plaintiff had been wrongfully dismissed.

At the time of dismissal, the 40 year old plaintiff had 10 years of service, worked in a specialized position (customs compliance) and was earning approximately $50,000 per year. The court awarded her 10 months reasonable notice.

Apprentice employee awarded $100,000 in punitive damages because employer covered up real reasons for dismissal

The decision in Marchen v. Dams Ford Lincoln Sales Ltd. 2009 BCSC 400, is noteworthy for four reasons:

  1. it involved an Apprenticeship Agreement made pursuant to the BC Industry Training and Apprenticeship Act:
  2. the dismissed employee was awarded $25,000 in consequential damages because of his apprentice status;
  3. the dismissed employee was awarded $100,000 in punitive damages; and
  4. the dismissed employee was awarded special costs.

Background

In November 2002, the plaintiff, a recent high school grad, entered into an apprenticeship agreement with the defendant car dealership (the "Employer") under the BC Industry Training and Apprenticeship Act. Pursuant to the terms of the Agreement and the provisions of the Act:  read more »

Production Manager at pulp mill entitled to 20 months notice

Jurisdiction: - British Columbia
Sector: - Forestry

Mr. Zaitsoff was dismissed without cause from his position as a Production Manager at a pulp mill in Castelgar. He was 46 years old and had worked at the mill for 19 years. He had four people reporting directly to him and 215 indirectly reporting. He earned $142,000 per year.

Notice Period

In relation to the fourth "Ansari" principle, the plaintiff pointed to the lack of available jobs in the pulp and paper industry, particularly in the current economic downturn.

In awarding the plaintiff 20 months, the court stated that while the lack of available employment opportunities resulting from a depressed economy is a factor to be taken into account, it “must not be given undue emphasis”.

Discounted Notice Period
 read more »

Employer must pay damages to employee for "false imprisonment" during theft investigation

Jurisdiction: - British Columbia
Sector: - Retail Trade

In Kalsi v. Greater Vancouver Associate Stores Ltd. 2009 BCSC 287, the BC Supreme Court awarded a fired employee $6,500 in damages for "false imprisonment" during the employer's theft investigation.

Mr. Kalsi had been employed as a mechanic by a Canadian Tire store for 16 years. He was 36 years old and off work on disability at the time the incident occurred.

Specifically, he was accused by the store's security officer of attending to the store on May 20, 2005 and stealing a light bulb for his vehicle.

After confronting Mr. Kalsi, the security officer told Mr. Kalsi to follow him up to the lunchroom. It was Mr. Kalsi's evidence that, once in the lunchroom:  read more »

Notice period reduced by six months for failure to mitigate

Jurisdiction: - British Columbia

The plaintiff was 63 years old and had been employed by the defendant for 38 years as a bench jeweller/goldsmith. He worked full-time and earned $26.50/hour, or just over $58,000 annually. His employment was terminated as a result of the business being sold.

The court found that the plaintiff was entitled to a notice period of 18 months, but that it should be reduced by six months because he had failed to mitigate his damages.

On the mitigation issue, the totality of the plaintiff's evidence was that he had: (1) personally delivered his resume to eight possible employers who were chosen because he had some familiarity with them, and (2) spoken to individuals at one company regarding opportunities for jewelers.

The defendant, in contrast, produced two affidavits that suggested that there were similar employment opportunities available that the plaintiff had not pursued.  read more »

"Managing Flexibility in the Workplace While Avoiding Constructive Dismissals"

Jurisdiction: - British Columbia

A lawyer with Clark Wilson LLP in Vancouver has written a paper entitled, "Managing Flexibility in the Workplace While Avoiding Constructive Dismissals (2008)". She ends her paper with a list of "Helpful Hints" for employers when restructuring.