Canadian Employment Law Today

Canadian HR Reporter, 2021 Canadian Employment Law Today Canadian Employment Law Today | | 7 More Cases More Cases Hunsley was promoted again in January 2018 to the role of manager, well planning. However, she continued to perform the duties of a drilling fluids programmer occasionally while managing about five drilling fluids programmers at a time. About one year later, CES went through some internal restructuring, and the company hired a new vice-president of business develop - ment, who assumed responsibility for some functions that Hunsley had been performing, including the hiring and firing of employees and expense account approvals. The new position also put another layer of manage - ment above Hunsley, as she now reported to this individual instead of directly to CES' presi- dent and chief operating officer. Without-cause dismissal due to financial problems By September 2019, the oil and gas industry in Alberta was experiencing financial challenges, and CES suffered significant drops in its busi - ness. As a result of this downturn, the company terminated Hunsley's employment on Sept. 24, 2019. CES didn't allege any just cause, so Hunsley's dismissal was without cause. Hunsley filed an action for wrongful dismissal and claimed that she was entitled to a reasonable notice of 10 months, given her position, experience, and the difficulty of finding a comparable job during the economic down - turn in the industry. CES disagreed, arguing that six to seven months was more appropriate for someone with Hunsley's length of service. The court found that Hunsley's role with CES involved technically qualified work, and she eventually became the leader of her team when she became an assistant manager, continuing to perform those technical func - tions while assuming a higher level of respons- ibility. After she became manager, she took on additional responsibility for hiring and firing, as well as expense approvals, and reported directly to the top executive of CES. This lasted for about a year before the new vice-president role was created. When Hunsley started reporting to this individual, her role essentially went back to her previous responsibilities in the assistant manager position, said the court. The court also found that Hunsley's age at the time of dismissal, 34, was a neutral factor, and her seven years and seven months of service with CES was a moderate length of tenure. Things were a little more complicated when it came to the character of Hunsley's employ- ment and the availability of similar employ- ment due to the changing responsibilities of Hunsley's role and the adverse economic conditions in the industry at the time of her dismissal. However, it was clear that Hunsley worked "in a skilled, technical capacity based on her undergraduate degree in chemistry, ending with a lower management position." The court noted that although Hunsley's job title didn't change when the new vice-president started after the internal restructuring, her role was essentially reduced from a high-level management position back to a supervisory role. As for the economic climate, the court added that it could increase the notice period, but it should be given undue weight. Ultimately, the court determined that Hunsley was entitled to eight months' reasonable notice and should receive damages reflecting the compensation she would have earned over this period, including all aspects of compensation that constituted a personal benefit to her, if she had been given working notice. Pandemic-related pay cut during notice period CES argued that Hunsley's damages should be reduced because, in April 2020, all employees accepted a salary reduction, and the RRSP plan was discontinued due to business challenges from the COVID-19 pandemic. However, the court disagreed, finding that the changes would have resulted in an 18.5-per-cent reduc - tion in Hunsley's salary, which would amount to a fundamental breach of the employment contract constituting constructive dismissal. While employees hoping to continue their employment during the pandemic might have accepted such a change, it's unlikely an employee on working notice of dismissal would have accepted it, the court said. "It would be wrong in principle for me to assume such an employer could reduce its damages by unilateral post-dismissal changes in the compensation package," said the court in finding that the damages should be based on Hunsley's salary and RRSP contributions at the time of her dismissal, regardless of anything that happened afterwards. CES also argued that a $500-per-month parking expense account shouldn't be included in the damages, as she didn't need to park in downtown Calgary during the notice period since she wasn't coming to work. The court disagreed, noting that CES paid it to Hunsley regardless of how much she paid for parking. The court refused to have Hunsley account for the "advantage" of being unemployed, as that could open the door to other savings and potentially offsetting costs, the court said. The court also agreed with Hunsley that she could claim compensation for "the reason - able expense of maintaining her professional standing" through dues she paid during the notice period to maintain her registration with the Association of the Chemical Profession of Alberta. CES paid these dues while she was employed with the company and would have done so during the notice period. "Professional memberships are of benefit to an employer, but also a personal benefit and interest to an employee in keeping her current with industry developments," said the court. In total, CES was ordered to pay Hunsley damages for lost compensation and benefits over the eight-month notice period, covering her base salary, lost RRSP contributions equal to six per cent of her salary, medical and dental benefits, parking expense account, profes - sional dues, and cellphone benefits. For more information, see: • Hunsley v. Canadian Energy Services LP, 2020 ABQB 724 (Alta. Q.B.). « from TEN MONTHS' on page 1 Pay cut during notice period would have been constructive dismissal An employee on working notice would be unlikely to accept significant changes to salary and RRSP contributions, said the court. Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog features topics such as paid sick leave, drug and alcohol testing, and harassment between remote workers. You can view the blog at www.employmentlawtoday.com.

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