Employers should expect to provide some compensation to employees they terminate without cause. The amount of compensation depends on a number of factors, such as the nature of the employment, the availability of similar employment, the age of the employee, and the amount of time the employee spent working for the employer. These factors are not always given equal weight. The relatively recent case of Dalton v. Fraser Valley Fire Protection Ltd. is a good example of this, where the weight given to the employee’s age far outweighed that given to their extremely short length of service.
This case involved an action for wrongful dismissal brought by an employee, Mr. Dalton, against his former employer, Fraser Valley Fire Protection Ltd. Interestingly, Mr. Dalton had only worked with this employer for three days prior to his dismissal. One would expect that an employee who has worked for such a short period of time would not be entitled to much notice, and typically this would be true. However, Mr. Dalton was also of a rather senior age, being 67 years old at the time of his termination.
Mr. Dalton’s age was a significant factor in this case. In assessing what amount of notice would be reasonable, the trial judge stated:
“Age is a factor that bears so importantly upon the prospects for other similar employment and employers who terminate the employment of older employees must appreciate the difficulty that is thrust upon older employees who are on the receiving end of a wrongful dismissal.”
Consequently, the trial judge noted that the consequences of terminating Mr. Dalton without notice were more severe than they would have been for many other employees. With this in mind, the trial judge concluded that three months’ notice was appropriate and awarded Mr. Dalton $11,440, plus costs. Not so bad for only three days of work!
The Duty to Warn
This case was also interesting because it reinforced the idea that employers should give their employees warnings, and then an opportunity to improve their behavior, before making the decision to terminate them without notice. There were undoubtedly many issues with Mr. Dalton’s work. Mr. Dalton was allegedly unproductive, uncooperative, and argumentative. The employer certainly had good reason to be concerned. However, the trial judge noted, quite instructively, that:
“Where there is an accumulation of a number of minor failings on the part of the employee, there is generally a duty on the employer to warn the employee. The employer must treat its employee fairly and with good faith, and must disclose to the employee the errors she or he is making, and give the employee an opportunity to correct the errant behaviour.”
The employer gave Mr. Dalton no such warning and no such opportunity to improve, instead opting to fire him sooner rather than later. This was a costly mistake. Had Mr. Dalton been warned that his performance and behavior was unacceptable, the employer may have been justified in terminating him without notice if he nevertheless continued with his substandard performance and behavior. As the employer gave no such warning, they were unable to terminate him without notice, ultimately resulting in the trial judge’s award of three months’ notice.