Canadian Employment Law Today

Canadian Employment Law Today Canadian Employment Law Today | | 3 Cases and Trends Cases and Trends Canadian HR Reporter, 2021 A BRITISH Columbia worker deserves 18 months' pay in lieu of notice for wrong- ful dismissal, but he will actually get two months less because he failed to mitigate his damages and could still find work before the ongoing notice period ends, the B.C. Su- preme Court has ruled. Richard Wilson, 65, was an employee of Pomerleau, a cross-Canada commercial construction company. He was the chief estimator for the B.C. region and had been hired in April 2010 by a predecessor com- pany that Pomerleau took over in 2016. Wilson had a total of 40 years' experience as an estimator in the construction industry and was responsible for the management, supervision, training and mentoring of be- tween two and six people in the estimating department for B.C. along with developing work plans, time schedules, risk analysis and cost estimates for construction projects. When Pomerleau took over the business in 2016, it drew up a new employment agreement for Wilson that recognized and credited his start date with the old company. On March 25, 2020, Pomerleau terminat- ed Wilson's employment without cause. The company paid him all accrued salary and va- cation pay that was owing, plus eight weeks' wages that amounted to Wilson's minimum entitlement to pay in lieu of notice under the B.C. Employment Standards Act. Wilson registered with two recruiting firms to help with the search for a new job, but eight months after his dismissal, he still hadn't found new employment. He applied for one position as a commercial manager, but he wasn't offered a job. He also reviewed websites to search for job openings. Disagreement over reasonable notice Wilson sued for wrongful dismissal, claim- ing entitlement to reasonable notice of dis- missal of between 18 and 20 months due to the importance and specialization of his role with Pomerleau, as well as his advanced age and the unlikelihood of finding similar employment. Pomerleau acknowledged that Wilson was entitled to reasonable notice, but his entitlement was half of what he claimed because he didn't make reasonable efforts to mitigate his damages by making adequate attempts to find a new job — the company pointed out that references were available from Pomerleau, but Wilson didn't ask for any. Pomerleau also pointed out that when it retained Wilson after the takeover in 2016, he was considered a valuable employee worth keeping and recognized his previous service with the predecessor company. At that time, Wilson was 59 years old, so an- other six years shouldn't be a "significant bar to him obtaining future employment," the company argued. The court found that Wilson's age was a significant factor that hindered his ability to find comparable alternate employment, noting that the six years since Pomerleau re- tained him put him at an age in which "he will likely be perceived by future employers as having a much-shortened potential em- ployment term before any chosen or forced retirement." Employers were more likely to be reluctant to invest time and energy in bringing aboard someone at the age of 65, the court said. The court also agreed that Wilson's role with Pomerleau involved supervising other employees but not that his position in- volved specialization of skills to the point where it made finding similar employment difficult. The fact that Wilson had worked for more than 40 years in construction esti- mation allowed him experience on "a wide range of construction projects that go well beyond this narrow subset of estimating work" that should help him find opportuni- ties, said the court. As for the job market, the evidence indi- cated that the construction industry was still going strong despite the fact that Wilson was terminated early on in the COVID-19 pandemic. Just because the recruiting firms hadn't found employment for Wilson, it didn't mean that no estimating positions were available, the court said in rejecting the idea that the job market was limited. The court determined that Wilson was entitled to 18 months' notice of dismissal. However, Pomerleau made a point that, at the time of the hearing, only eight months had passed since Wilson's termination. The court noted that it had been established in previous case law that when a notice period is not close to expiring when judgment is granted — in this case, there was another 10 months remaining in Wilson's reasonable notice period when the court awarded dam- ages for pay in lieu of notice — a "contin- gency reduction" was appropriate, to avoid the chance of double recovery in the event that Wilson found a new job within the next 10 months. As a result, the court made a contingency deduction of one month to Wilson's reasonable notice entitlement. The court also found that Wilson did not make reasonable efforts at mitigation, as Pomerleau was able to show that several chief estimator or senior estimator posi- tions had been available in the region on various job sites. In addition, Wilson was unable to show how often he had commu- nicated with the recruitment companies or that he had gotten in touch with contacts in the industry. He only said he had seen advertisements for estimating positions that were "lower level" or "entry level." He didn't acknowledge being aware of the positions Pomerleau pointed out and it appeared that he limited his job search to a narrow field of highway construction projects with a certain value, despite his varied experience, said the court in reducing Wilson's notice entitlement another months for a failure to mitigate. Pomerleau was ordered to pay Wilson the equivalent of 16 months' salary, ben- efits and profit sharing, minus the severance payment already received — a total of more than $218,000. For more information, see: • Wilson v. Pomerleau Inc., 2021 BCSC 388 (B.C. S.C.). 65-year-old B.C. worker entitled to 18 months reasonable notice, but awarded 16 months' pay due to lack of mitigation, remaining notice period BY JEFFREY R. SMITH Advanced age helps, lack of mitigation hurts notice entitlement The fact that the worker had more than 40 years in construction estimation gave him a variety of experience that should help him find opportunities.

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