Martin Sheard of TevlinGleadle was plaintiff’s counsel in a successful wrongful dismissal claim in BC Supreme Court, where the employer initially dismissed without any allegation of just cause for dismissal. When Mr. Dobbs sought a severance package, the employer refused to pay anything, only then alleging conduct which amounted to “just cause”.
See Dobbs v. The Cambie Malone’s Corporation, 2011 BCSC 1830
At the trial, the employer failed to provide any arguable basis for cause. The trial judge commented that the employer had “all but abandoned” the allegation of just cause.
Mr. Dobbs had sought punitive damages on the basis of an improper allegation of cause, but the court did not find the sort of conduct needed to justify such an award. The court wrote:
[67] I do not agree with counsel for the plaintiff that the termination was high handed or outrageous. The circumstances of this case do not bear any of the hallmarks of the cases cited by Mr. Dobbs’ counsel. Accordingly, the claim for punitive or aggravated damages is dismissed.
NOTICE PERIOD:
The honourable Madam Justice Wedge awarded damages based on a 12 month notice period. In doing so, the court undertook an analysis of the effect of various “factors” which the courts typically review in determining the appropriate notice period for dismissed employees. In particular:
Age: Mr. Dobbs was 51 years old at the time of dismissal. This was found to be a factor tending toward a longer notice period. Judge Wedge specifically referred to and approved of language in earlier reported decisions where age was a factor, by age 50. The court wrote:
[40] The company in this case does not dispute that Mr. Dobbs’ age, 51, is a relevant consideration. The case law amply supports that concession. In the case of Orlando v. Vancouver Coastal Health Authority, 2005 BCSC 926, Mr. Justice Taylor said at para. 49:
“It is no secret that employees terminated at such an age have a much greater difficulty finding employment than do those of a younger age.”
[41] Taylor J. cited Harding J. in Birch v. Grinnell Fire Protection, [1998] B.C.J. No. 1602 (S.C.) at para. 21 where he said:
“[M]any potential employers these days are reluctant to hire new employees over the age of 50.”
[57] In my view, that observation has resonance in the unique circumstances of this case. Like the plaintiff in the Orlando case, Mr. Dobbs is over 50 years of age and held a senior and specialized position in the company’s structure. As Mr. Justice Taylor stated at para. 77:
“As one reaches the pinnacle of a career, the ability or opportunity to replicate it diminishes in direct proportion to the job’s uniqueness and with respect to the person’s age.”
Length of Service (Hiatus, or Break in Service): Mr. Dobbs had worked for Malone’s for over 11 years. However, only the 30 months prior to the termination had been continuous. Before then he had worked for another employer for about one year. He had left voluntarily after about 9 years service, from 1999 to 2007, only to return in 2008 when approached by the defendant. The court found that the plaintiff should be treated as an employee with 11 years service, because, when he returned, he was not treated as a new employee but an employee with prior creditable service. Judge Wedge wrote:
[45] I will now address the issue of length of service. As I have already noted, Mr. Dobbs submits that all 11 years of his service with Cambie Malone’s should be taken into account with respect to the appropriate notice period, while the company says only the last 30 months are relevant.
[46] The question is, how is the 11-month hiatus to be treated? The law concerning this issue was succinctly stated by Mr. Justice Lysyk in Beach v. Ikon Office Solutions, Inc., [1999] B.C.J. No. 1574 (S.C.), where the Court said at para. 13:
Where there is no express term in the re-employment contract dealing with the issue, the question is whether the employer has effectively recognized continuity of service.
[47] In the earlier decision of Chorny v. Freightliner of Canada Ltd. (1995), 3 B.C.L.R. (3d) 116 (S.C.), the Court similarly concluded that absent any express employment contract term, the question is whether the employer has effectively treated the employee as a long-term employee.
[48] I have reviewed several other decisions on the issue, including Potter v. Halliburton Group Canada Inc., 2004 BCSC 1376; Swamy v. O’Bryan Hotels Ltd., [1997] B.C.J. No. 2114 (S.C.); and Graham v. Galaxie Signs Ltd., 2010 BCSC 609. All of these decisions stand for the proposition that in the absence of an express contract term dealing with a hiatus in an employee’s term of employment, the question is whether the employer and employee conducted themselves at the point of rehire in a manner consistent with the employee being given credit for the entire employment period. It is a question of fact to be determined on all of the evidence.
[49] I will say, parenthetically, that I do not read Graham v. Galaxie Signs Ltd. as departing from any earlier case law. In Graham, Groves J. simply treated the issue as a finding of fact, as did the Courts in other decisions I have cited. I do not read the Graham decision as authority for the proposition that unless there is an express agreement recognizing prior service, it will not be recognized.
[50] I turn then to the facts of this case. Mr. Yehia was clearly quite anxious to have Mr. Dobbs return to a management position in Cambie Malone’s. He wanted to place him in a position that was a comfortable fit. When Mr. Dobbs asked about the 6% vacation entitlement with which he had left the company, Mr. Yehia agreed that it would remain at 6%. Mr. Yehia knew that if Mr. Dobbs was treated as a new hire, he would be entitled to only 4%. He understood the implications of Mr. Dobbs receiving three weeks rather than two weeks’ vacation.
[51] When Mr. Dobbs said he wanted a 9:00 to 5:00 job that did not entail pulling shifts, Mr. Yehia readily agreed. He was anxious to have the company benefit from Mr. Dobbs’ prior experience with the company. In e-mail exchanges with Mr. Dobbs, he referred to the company as always keeping the door open for Mr. Dobbs. Mr. Yehia knew Mr. Dobbs’ strengths and talents from the previous eight years of employment and wanted to build on those for the new Human Resources and Operations Manager position.
[52] I am satisfied that in the discussions leading to Mr. Dobbs’ return to Cambie Malone’s, the parties assumed that Mr. Dobbs would be treated as an employee with many years of service with the company and not as a newly hired employee. That being the case, I conclude that Mr. Dobbs had 11 years of service with the company when he was terminated and should be regarded as such for purposes of the appropriate notice period.
Notice Period Awarded: The court found that given all of the relevant factors, a 12 month notice period was appropriate. She said that, if she had only found that the 30 month period of final service was to be taken into account, a 9 month notice period would have been justified.
Summary and Conclusion:
This case will be useful for those persons wishing to understand the implications of a break in service for determination of reasonable notice periods, as well as an case justifying a 9 month notice period after 30 months service (though obiter) for a 51 year old manager.