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48 year-old middle manager with 21 months service awarded 9 month notice period

Jurisdiction: - British Columbia

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.

Notice Period

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:

  • at the time of dismissal, the employer refused to tell the employee why he was being dismissed.
  • despite being dismissed on a not for cause basis, the employee was escorted off the premises immediately and not allowed to collect his personal belongings.
  • the employee's wife had recently quit her well-paying job in Germany to return to Canada and enrol in a six month training program on the basis that the family's long-term prospects were better in Canada, in large part because of her husband's job.
  • subsequent to his dismissal, the employee had contemplated suicide and was under medical treatment for depression. He had also started smoking and drinking heavily.
  • despite doing whatever he reasonably could to find new employment, he remained unemployed some seven months later.
  • the family had decided to return to Germany and recently sold their home Delta.
  • the letter of reference that was provided to the employee was of no use to him because it inaccurately described his position with the employer.

Moral (Wallace) Damages

It appears that the employee did not claim for moral or other extraordinary damages.

Bonus

The court adopted the well known proposition that whether a dismissed employee is entitled to damages for loss of a bonus that would have been paid during the notice period depends on whether the bonus was an integral part of the compensation structure or a discretionary payment by the employer.  The court concluded that, based on the evidence, it was an integral part of his compensation in this case and awarded him $9,000.

Comments

-According to the decision, the employee was not represented by a lawyer until a week before the trial. Perhaps, although by no means for certain, if he had engaged a lawyer earlier, the facts relating to the manner of dismissal could have been marshalled into a successful claim for bad faith moral (Wallace) damages. This would be particularly so if there was a link between the manner of dismissal and the employee's subsequent medical issues.

-This case is a useful source of information when preparing a notice chart in relation to a "short service" employee, as the court succinctly summarized the Bardal factors/notice period in several other short service cases.