Canadian Employment Law Today

November 8, 2017

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: customersupport. legaltaxcanada@tr.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com Sales Manager: Paul Burton Email: paul.burton@thomsonreuters.com Phone: (416) 649-9928 Emplo y ment Law Today Canadian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Was Thambapillai entitled to more notice of dismissal? OR Was Thambapillai given sufficient working notice of dismissal? IF YOU SAID ambapillai was entitled to more notice of dismissal, you're correct. e court found that while Labrash notified - ambapillai that his employment was going to end, it never gave him a definite date. am- bapillai was originally told his employment would end in January or February 2015, but it did not. When it actually ended sev- eral months later, it was beyond the 13-week period of notice required by employment standards legislation. Once ambapillai continued working past this point, he was entitled to fresh notice, the court said. e court also found that the letter Labrash provided in November 2014 wasn't sufficient notice as it didn't provide am- bapillai with a definite termination date. e company's reminders over the next few months also didn't provide a date. Without a definite date, there was no proper notice, said the court in disagreeing with Labrash's assertion that a reasonable person would understand he was being terminated. e court noted that the decision to keep the facility open longer was a business de- cision made that ambapillai wasn't privy to, and someone in his position couldn't be expected to guess how such decisions played out and would affect his employ- ment status. "A notice of termination must be clear and unambiguous," said the court. "e combination of oral reminders and the let- ter were simply insufficient when all the cir- cumstances — including the fact that (- ambapillai's) employment continued and other employees were transferred to other locations — are considered." e court determined ambapillai's claim for 37 weeks of lost pay was fair and Labrash acted unfairly in his termination, warranting the addition damages claimed for mental distress. Labrash was ordered to pay $24,576 in total damages. For more information see: • Thambapillai v. Labrash Security Services Ltd., 2016 CarswellOnt 15985 (Ont. S.C.J.). Security guard can't secure termination date THIS INSTALMENT of You Make the Call involves a dispute over working notice of dismissal. Bertram ambapillai, 73, was a secu- rity guard for Labrash Security Services, a security systems provider in Toronto. He was hired to be a security guard at a pack- aging plant in 2000, and when Labrash took over responsibility for the facility's security in 2003, ambapillai's employment was transferred to Labrash. On Nov. 24, 2014, the principal of Labrash gave ambapillai a letter stating that the company who ran the facility no longer re- quired Labrash's services. As a result, am- bapillai's employment would end in January or February 2015. e letter also stated that since employers were required to give termi- nation notice to employees, Labrash would advise ambapillai as soon as it was given a firm date by the facility owner. However, ambapillai continued work- ing through February and over the next few months. Other Labrash employees were re- located during this time and ambapillai thought this might happen to him as well, though no one told him as much. Labrash's manager occasionally reminded ambapillai that his employment would end and he should look for other employ- ment, but no one provided a definite date of termination. On July 24, 2015, Labrash's principal told ambapillai that his employment was ter- minated effective immediately and gave him a record of employment. ambapillai filed a complaint, saying he wasn't given proper notice of termina- tion. He said the original letter providing notice wasn't sufficient and he deserved more notice before his actual termination. He claimed $60,000 for breach of contract, $15,000 in damages for mental suffering from Labrash's conduct in the way he was terminated, and $15,000 in special damages. ambapillai did find new employment in April 2016 that mitigated his damages, and eventually reduced his claim to $17,000 for 37 weeks of lost income after his dismissal and $7,500 damages for mental distress. Labrash argued that ambapillai was given plenty of notice of his termination, as he was notified nine months before his actual termination that he would be dis- missed and reminded on a regular basis that he should be looking for work. A reason- able person would have understood that his employment would come to an end at some date in the future, the company said. Employee continued working for months after the original time he was told his employment would be terminated.

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