Canadian Employment Law Today

Canadian HR Reporter, 2020 Canadian Employment Law Today Canadian Employment Law Today | | 7 More Cases More Cases On May 9, 2018, WFNEDC terminated Slipp's employment without cause. It pro- vided her four weeks' pay in lieu of notice — the minimum amount required by the Em- ployment Standards Act of New Brunswick — plus vacation pay and outstanding pay at the time of her termination. Worker refused to sign release for additional package WFNEDC also offered Slipp a package that included an additional $20,000 severance pay and coverage in its medical plan for an- other three and one-half months, until Aug. 31, if she signed a release of claims against WFNEDC. Slipp refused to sign the release in exchange for the extra payment and benefits, so WFNEDC provided only the legislative minimum termination payment. Following her termination, Slipp worked for a credit union but was let go after less than one week, apparently because some business customers threatened to pull their business. About one year after her termina- tion from the casino, she found part-time work at a Walmart store. The Walmart job started off with a range of 20 to 37 hours per week, but it eventually settled in at 12 hours per week in July. Slipp was hired for a full-time job at an- other company in September 2019 and con- tinued working weekends at Walmart for about one month before quitting that job. Slipp filed a claim for wrongful dismiss- al against WFNEDC, claiming damages for common law notice reflecting her 17 years of service at the casino, her relatively advanced age and the nearly 16 months it took her to find a regular, full-time job. She argued rea- sonable notice of 12 to 18 months was ap- propriate. WFNEDC refuted the claim, arguing the five years Slipp worked part-time should be subtracted from her service time and only the 12 years she worked full-time should be considered for determining reasonable notice. It also pointed out that similar em- ployment was available since Slipp found three different jobs fairly quickly during her claimed notice period, so she failed to prop- erly mitigate her damages. The court noted that "the primary objec- tive of reasonable notice is to provide the ter- minated employee with a reasonable oppor- tunity to seek and find alternative suitable employment" and wrongful dismissal dam- ages "are designed to place the aggrieved par- ty in the same position he/she would have been in had the contract been performed, i.e., had the employee been able to work the notice period." The court added that the reasonableness of the notice is affected not just by the length of service and age of the employee but also the character of the em- ployment and the availability of similar em- ployment with the worker's experience and qualifications. The court also noted that a dismissed em- ployee such as Slipp was obligated to "make reasonable efforts to mitigate his/her dam- ages by reasonably seeking alternative em- ployment or sources of income." Full term of employment factored in The court initially addressed WFNEDC's as- sertion that the first five years of Slipp's em- ployment that was part-time shouldn't be included in her service time and disagreed. When part-time employment is factored into a reasonable notice calculation, it is usually related to the character of the employment, the amount of the employee's earnings or other factors unique to the situation — not as a way to reduce the amount of time the employee is considered to have worked for the employer, particularly when the majority of the service was in full-time employment, as in Slipp's case, the court said. "The fact that an employee has worked part-time for a portion of their career with an employer need not always be treated as to reduce any determination of the reasonable notice period," said the court. The court found that Slipp made reason- able efforts to mitigate her damages, as she was clearly looking for work given that she found jobs, although the first one was short- lived and the second one was part-time. The fact that the first two jobs didn't approach the nature and earnings of her casino posi- tion emphasized that it wasn't necessarily easy for someone of Slipp's age, experience and qualifications to find similar employ- ment. However, the court felt it wasn't necessary to extend the notice period all the way to the date Slipp found full-time comparable employment in September 2019, 16 months after her termination by WFNEDC. The cir- cumstances existing at the time of termina- tion in May 2018 should apply, rather than the time she finally found comparable em- ployment in September 2019, the court said. The court determined that Slipp was en- titled to a reasonable notice period of 14 months. As a result, WFNEDC was ordered to pay her damages equivalent to 14 months' pay, reduced by the statutory pay already paid to her at her termination. As for pos- sible deductions for the part-time employ- ment at Walmart Slipp had for the last two months of the notice period, the court in- dicted it would hold an additional hearing to address the issue of mitigation and costs, unless WFNEDC and Slipp reached a resolu- tion on their own through negotiations be- tween them. For more information, see: • Slipp v. Woodstock First Nation Economic Development Corporation, 2020 NBQB 20 (N.B. Q.B.). « from FULL CREDIT on page 1 12 of worker's 17 years of service involved full-time work The employer offered a package that included additional severance pay and 3.5 months additional medical coverage if the employee signed a release. • The specific employee refusing the work. (Are they over 65 or have a pre-existing condition putting them at greater risk?); • The most current information on CO- VID-19 from public health authorities. (Is the workplace in a geographic area that has been particularly hard hit by COVID-19? What are the most up-to-date recommendations for physical distancing and personal protective equipment?); • Government recommendations and applicable orders. (Is the workplace es- sential or non-essential? Is it reasonable and possible to permit employees to work from home?). Best practices for dealing with work refusals Keep in mind that employers generally cannot discipline, sanction or threaten an employee for exercising their right to refuse work — this would be a reprisal in breach of the employer's obligations under the OHSA. In the event that an employee who is re- fusing to attend the workplace due to fear of COVID-19 is able to work from home, employers should consider permitting it. If the employee cannot work from home due to the nature of their position but the in- vestigation deems the workplace to be safe and the employer can demonstrate that rea- sonable steps have been taken to ensure the employee's safety, any continuation of the work refusal may be deemed unreasonable and the employee would be requested to re- turn to work. Work refusals « from WORKPLACE SAFETY on page 3

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