Canadian Employment Law Today

September 23, 2020

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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©2020 HAB Press Limited, a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under license by HAB Press Limited. CANADIAN EMPLOYMENT LAW TODAY is a trademark of HAB Press Limited. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 70318 4911 RT0001 How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE 20 Duncan St. 3rd Floor, Toronto, ON M5H 3G8 President: Tim Duce Editor: Jeffrey R. Smith Email: Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: Phone: (416) 644-8740 x 236 Marketing Co-ordinator: Keith Fulford Email: Phone: (416) 649-9585 HAB Press Ltd. THIS INSTALMENT of You Make the Call in- volves an Alberta worker who was fired two years after the employer recruited him from a similar job. Joshua Passey, 35, was a parts supply person/ customer service representative for The Bolt Supply House, a supplier of fasteners and indus- trial products in Lethbridge, Alta. He had been employed there for about six months when, in late 2013, he was contacted by Motion Indus- tries, another supplier of industrial equipment and bearings. Motion said it was interested in him as a potential employee, so he sent them a resumé and attended an interview. Motion decided not to hire him at that time, but it came calling again in the summer of 2014. Passey went to another interview, where he said he was satisfied with his job at Bolt Sup- ply. However, Motion told him of the benefits, commissions and advancement opportunities available with the company and that it would be a better long-term career choice as many employees stayed for many years. Motion of- fered a higher salary as well, along with health care, dental care, life insurance, long-term dis- ability coverage and a pension plan. Passey decided that Motion operated better than his current employer and was impressed by the company's recruitment efforts. He ac- cepted the job with Motion and, despite at- tempts by Bolt Supply to keep him with incen- tives, he started working for Motion on Aug. 25, 2014 in a customer service representative role in which he responded to customer inqui- ries, provided quotes, took customer orders and sourced products in inventory. Passey had one performance review that consisted of a brief meeting and a statement from management that he was doing well. Mo- tion told him in mid-2016 that he was eligible for a raise but that all salaries were temporarily frozen because of the economic climate. In August and September 2016, Passey had to take three weeks off work for a medical con- dition that required surgery. According to Passey, he didn't receive any negative feedback on his performance, so he wasn't expecting it when Motion terminated his employment without cause on Oct. 31, 2016. The company offered him severance pay in lieu of notice of four weeks plus 10 per cent in lieu of benefits. Passey sued for wrongful dismissal, claiming that Motion acted in bad faith because it wasn't truthful about why he was fired. He claimed he was terminated because of his recent medical condition and it had induced him to leave se- cure employment with the promise of a long- term career. He claimed he was entitled to no- tice in the range of four to six months. YOU MAKE THE CALL Did the company provide notice within a reasonable range? OR Was Passey entitled to a larger package due to bad faith and inducement? IF YOU SAID the notice was within a reason- able range, you're right. The court noted that Passey hadn't worked at Motion for very long, just over two years, and his position wasn't su- pervisory. In addition, his age — 31 at the time of dismissal — wasn't a detriment to him find- ing a new job. The court found that there was no evidence Passey was terminated because of his medical absence, nor did he suffer from harm other than "the usual mental distress resulting from termi- nation." Passey said he was confused and dis- appointed after he was fired, but nothing more than that. The court also found that Motion didn't in- duce Passey to the point that it warranted an extra notice entitlement. He had worked at the job at Bolt Supply for only six months when Motion contacted him, and Motion's interest "was in keeping with their standard recruitment processes and their hiring attention was not fo- cused upon him specifically" — in fact, Motion didn't hire Passey the first time it interviewed him. In addition, while Motion indicated to Passey that it might provide a better long-term career choice and many employees stayed for a long time, these were general statements about the company and not specific promises to Passey, said the court. "I find nothing in Mr. Passey's hiring that could be construed as an inducement other than the 'normal courtship' that occurs between an employer and a prospective hiree," said the court. The court determined the Passey wasn't en- titled to the larger notice period for which he claimed, but it found that he was entitled to a couple of more weeks' pay in lieu of notice. Motion was ordered to pay an additional two weeks' pay and benefits on top of the four weeks it had already given him. For more information, see: • Passey v. Motion Industries (Canada) Inc., 2020 ABPC 51 (Alta. Prov. Ct.). Worker fired after 2 years; claims extra notice for inducement The company told him of the advancement opportunities available and that it would be a better long-term career choice as many employees stayed for many years.

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