Martin Sheard was successful counsel on this case.
The full Reasons for Judgment are available online.
The parties attempted to define the plaintiff’s position as a contractor to the defendant (as distinct from employee). On that basis, the Defendant argued at trial that it was not liable for damages for dismissal. Greyell, J. found that the circumstances were ‘equivocal’ with some indicia of an employment relationship and other indicia suggesting the plaintiff was a contractor. Greyell, J. found that under these circumstances reasonable notice was due under the contract.
Using the Bardal factors, Greyell, J. found that four months’ notice was appropriate. Important elements in so finding included:
• the plaintiff was 64 when terminated
• he had worked for three months
• his position was ‘significant’ and ‘senior’
• the nature of the plaintiff’s career (as a construction industry project manager) was project driven, with most positions lasting only a few months
The Defendant also tendered expert evidence in support of its allegation the plaintiff had failed to mitigate. This evidence was rejected. Greyell, J. emphasized the fact that the plaintiff had contacted the Defence expert (himself a recruiter) during his job search but had received no meaningful reply.
This case highlights an interesting tension. Where an expert is tendered to say a plaintiff could/should have mitigated, what should the parties do to ensure that the plaintiff does mitigate?