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Month: December 2021

Old Age: Reasonable Notice and Mitigation in Hettrick v. Triple F Paving Co. Ltd.

by Stacey R. Ball| | Employment Law

Ms. Beverley Hettrick was hired by her employer in 1996. She worked as a receptionist, bookkeeper and office manager and earned approximately $44,200 per annum and received an annual bonus of $2,600.

In September 2015, Ms. Hettrick began a stress-related medical leave. She had a doctor’s note identifying her as being “not presently well enough to return to work”, and that the date of her return to work was “indefinite”. The employer had expected Ms. Hettrick to provide them with this letter in October 2015, but the note was never delivered. Ms. Hettrick claimed that her mental state at the time was the cause.

In 2017, two years later, Ms. Hettrick announced that she was prepared to return to work. However, she received a letter from her employer explaining that because they had not received the doctor’s note as expected, the employer was taking the position that she had abandoned her employment. This case provides an interesting overview of the issue of job abandonment. It further comments on the effect of old age on reasonable notice entitlements. Finally, this case extends some support to older employees by finding that they may owe no duty to mitigate.

Disposing of the Abandonment Issue

Ms. Hettrick took the position that she never abandoned her position with the employer. When she requested leave, she explicitly communicated her intention to return to work when able.
The employer, on the other hand, relied on the following test in their efforts to establish that she had indeed abandoned her position:

“… do the statements or actions of the employee, viewed objectively by a reasonable person, clearly and unequivocally indicate an intention to no longer be bound by the employment contract”

Ms. Hettrick had not provided her doctor’s note as required and subsequently did not communicate with the employer for the following two years. This, the employer believed, demonstrated a clear and unequivocal indication of her intention to no longer be bound by the employment contract. Unfortunately for the employer, the trial judge disagreed with their version of the facts. Although they may have expected to receive a doctor’s note, there was never any explicit mention of it being a requirement.

Furthermore, according to Ms. Hettrick, her failure to communicate during her medical absence did not amount to a clear and unequivocal indication of her intention to abandon her employment. If there is doubt, the employer had an obligation to clarify with her. The trial judge concluded, on the evidence, that Ms. Hettrick never abandoned her position. As there was no job abandonment, Ms. Hettrick was entitled to reasonable notice. That was the next issue the trial judge had to decide.

The Influence of Age on Reasonable Notice

Determining reasonable notice depends on a number of factors, one of which is the age of the employee. Where the employee is of an older age, this typically lends itself to a lengthier notice period. According to Justice La Forest of the Supreme Court of Canada, “Barring specific skills, it is generally known that persons over 45 have more difficulty finding work than others.” This accentuated difficulty in finding alternative employment justifies granting older employees a lengthier notice period.

Ms. Hettrick was 73 years old when the termination of her employment was communicated to her. She had worked with the defendant employer for at least 19 years. Although she did not work in a managerial position, the trial judge felt that her age and length of service justified awarding her 18 months’ reasonable notice.

The Influence of Age on Mitigation

Generally, dismissed employees owe a duty to mitigate their losses by making efforts to find new employment. However, this decision would alleviate some of that pressure on older dismissed employees. The trial judge found that Ms. Hettrick, who was 73 years old at the time of her termination, owed no duty to mitigate. Therefore, her wrongful dismissal damages could not be reduced as a consequence of failing to make mitigation efforts.

This case demonstrates that although dismissed employees have a general duty to mitigate, judges retain some discretion to determine the extent of mitigation required. In this case, given the employee’s age, no mitigation was required. Once a dismissed employee is of significantly senior age, their prospects of finding work became far more limited. The trial judge was obviously aware of that and adopted a very pragmatic approach to mitigation.

Reasonable Notice: Length of Service Does Not Require Mathematical Certainty

by Stacey R. Ball| | Employment Contracts

Reasonable Notice: Length of Service Does Not Require Mathematical Certainty

In determining reasonable notice of termination periods, courts today continue to be guided by the seminal decision Bardal v. Globe & Mail Ltd. and in particular the following passage:

“The reasonableness of the notice must be decided with reference to each particular case, having regard to the ‘character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.”

One of these factors, the length of service of the servant, proved rather difficult to pinpoint in one recent decision. However, as it turns out, pinpointing the length of service with absolute mathematical certainty might not be necessary.

Mr. Skowron’s Complicated Work History

The Skowron decision is about a dismissed employee, Mr. Skowron. Mr. Skowron was a professional engineer working as a Technical Manager and earning approximately $146,960 at the time of his dismissal. He was 61 years of age. He worked in a responsible and important position but was not a manager. These are all important factors under the Bardal test, and on the facts they were easily discernible. One factor, however, was not so easily discernible – his length of service.

Mr. Skowron’s length of service with the employer involves a rather complicated history of work. He was hired in November 1994 and worked until his resignation in 2000 (i.e., approximately 6 years of service). He intended to pursue a career as a consultant. Just 11 months later, the employer invited Mr. Skowron to return to work on a particular project under contract. At that time, there was no agreement that he would remain with the employer once the project was completed.

Then, in 2002, Mr. Skowron was contracted again for another specific project. In 2003, the employer decided they would simply re-hire Mr. Skowron. He entered into a new employment contract, one which was supposedly for a fixed-term. Mr. Skowron continued on with the employer after the fixed-term was completed, and remained there until his termination in 2020. Understandably, this rather odd employment history created some difficulty in accurately determining what Mr. Skowron’s length of service was. Did he work from 1994 to 2020? Did he work from 1994 to 2000 and then again from 2003 to 2020? Or, is only his service between 2003 and 2020 counted? What exactly was his length of service?

Length of Service: Not a Mathematical Equation

The trial judge was asked by the defendant employer the characterize Mr. Skowron’s employment as a 6-year job, followed by a 3-year consultancy, followed by a 17-year stretch of employment with the defendant. According to the trial judge, this was both technically and legally correct. Despite that, the trial judge took a different route. He commented:

“While the defendant is both technically and legally correct, the strict legalities of the situation do not address the issue. I am called to weigh factors. It is not a reductionistic inquiry as suggested by the defendant. Rather, the court takes a holistic approach to review all the relevant circumstances to try to arrive at an appropriate assessment of the amount of time reasonably required for the plaintiff to obtain new employment.”

A person looking at Mr. Skowron’s employment history with the defendant reasonably would see that he has worked with the defendant since 1994, except for the period of 11 months when he tried to go off on his own. Of his 27-year long career, 26 years were spent with the defendant. His job from 1994 to 2000, from 2000 to 2003, and from 2003 to 2020 remained the same. He did not have three different careers with three different employers – rather, his “entire working experience” was with the defendant employer.

Certainly, the employee did take a small break from his employment with the defendant. However, the trial judge noted that the determination of Mr. Skowron’s employment is not a binary one. The goal, the trial judge said, is not to punish Mr. Skowron for leaving for a year nor is it to reward the defendant employee for keeping meticulous records. Rather, the goal is to properly apply the Bardal factors to determine the appropriate notice period. Accordingly, the trial judge did not believe it was fair to characterize Mr. Skowron’s employment with the defendant as merely 17 years on account of the small break in employment. The application of the Bardal factors, he said, “is not mathematically precise. Nor is it intended to be.”

Determining The Notice Period

In considering all of the above, the trial judge concluded that a period of 24 months’ compensation was appropriate. Had the trial judge applied the Bardal factors “mathematically” by limiting Mr. Skowron’s length of service to 17 years, this number may have been shorter.