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 with 26 years of service is entitled to 20 months' notice of dis- missal but will only be paid for 17 because he failed to reasonably mitigate his losses, the B.C. Supreme Court has ruled. Bradley Moore, 54, was hired to work for Kal Tire, a tire and vehicle maintenance com - pany based in Vernon, B.C., in January 1994. For most of his time with the business, he worked as a commercial sales representative. In this role, Moore sold tires to corporate cli - ents such as airports and delivery companies, including special tires for large vehicles and trucks. He was hired on a verbal employment contract and no written contract was drawn up during his tenure with Kal Tire. When the COVID-19 pandemic hit in March 2020, Kal Tire saw a significant downturn in its business. As a result, it had to lay off a large number of employees in May. This included Moore, who was told by his manager on May 19 that he had been laid off. The manager told him to go to the Kal Tire location where he worked immediately and drop off his com - pany vehicle, laptop, and cellphone. When Moore arrived, the acting manager gave him a temporary layoff letter and asked him to sign some paperwork. He was then left outside while he waited for his wife to pick him up. According to Moore, he felt as though he had done something wrong because of the abrupt manner in which he had been laid off. The next day, Moore contacted Kal Tire to ask about his expense claims and record of employment. About three weeks later, Kal Tire's head office contacted him to set up an appointment with the zone manager at the location where Moore had worked. Moore be - lieved the meeting had been arranged for July 14, but when he arrived he was told that it was July 15 at a different location. Moore went to the other location the next day, where he was told that his services were no longer needed. The zone manager gave him a termination let - ter and told him that it had nothing to do with his performance. Kal Tire provided him with eight weeks' pay in lieu of notice. Job search, business startup Moore didn't find another job over the next year. He started a woodworking business that he hoped would grow and provide an alterna - tive source of income, but the business wasn't able to generate any revenue. He sued Kal Tire for wrongful dismissal, including general, spe- cial, aggravated, and punitive damages. He also claimed that Kal Tire should compensate him for some costs associated with setting up his woodworking business as a mitigation measure. Moore also claimed that he was a manage - ment-level employee who was involved in budgeting, coaching and mentoring, respon- sible for safety audits, and participated in hir- ing processes and, combined with his lengthy service, he should receive the upper limit of 24 months' notice. Kal Tire argued that his involvement in such activities was part of the culture at Kal Tire where they encourage con - tributions from all employees and he wasn't responsible for them. The company also noted that Moore was under the supervision of two managers and countered that his entitlement should be in the range of 12 to 16 months. The court found that Moore was a senior salesperson and not a management-level em - ployee, but that didn't automatically warrant a shorter notice period. Although sales skills are usually more transferable than senior manage- ment skills, Moore's skills and knowledge in the field of commercial tire sales, built up over more than 26 years, was "highly specialized," the court said. "I find that the type of commercial sales job that Mr. Moore was involved in required a highly specialized and specific area of knowl - edge, the character of which suggests that a longer notice period is appropriate in the cir- cumstances," said the court. The court also noted that the pandemic wasn't a factor on its own that should increase Moore's notice entitlement, but its impact on the availability of similar employment should be considered. The pandemic-related econom - ic downturn that caused the layoffs at Kal Tire also affected the industry as a whole. Based on the character of Moore's employ- ment, his age, and his 26 years of experience, the court determined that 20 months' notice was appropriate. However, the only evidence that Moore pur- sued what limited employment opportunities were available was that he submitted resumés without cover letters for several postings for similar commercial tire sales jobs. He also didn't contact any of his connections within the industry regarding any available positions. The court found that this wasn't a sufficient effort to mitigate his losses, as his obligation wasn't limited to "searching for exactly the same, or a nearly identical, job." His limited job search wasn't reasonable, said the court. The court also found that Moore's startup woodworking business wasn't reasonable mit - igation. There was no evidence Moore could reasonably expect the business to provide an alternative source of employment or replace his lost income. As a result, the court reduced Moore's notice entitlement by three months. Kal Tire was ordered to pay Moore the equiv - alent of 17 months' salary and benefits, plus amounts to which he was entitled under the company's profit share program for 2020 — the program excluded anyone who resigned or was terminated before March 2 of that year, so even though the notice period extended into 2021, Moore wasn't eligible for that year's payment. For more information, see: • Moore v. Instow Enterprises Ltd., 2021 BCSC 930 (B.C. S.C.). Sending out resumés without cover letters and starting woodworking business wasn't reasonable effort to mitigate losses from termination BY JEFFREY R. SMITH Lack of mitigation reduces B.C. worker's notice entitlement CREDIT: ARTEM KNIAZ iSTOCK ABOUT THE AUTHOR Jeffrey R. Smith Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.smith@keymedia.com or visit www.employmentlawtoday.com for more information. The worker's involvement in budgeting, hiring, mentoring, and safety audits was part of regular employee participation in such processes, not any managerial responsibilities.

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