Canadian Employment Law Today

Canadian HR Reporter, 2021 Canadian Employment Law Today Canadian Employment Law Today | | 7 More Cases More Cases inventory manager, operations manager, proj- ect management, sales support, administra- tion, and IT. The company's owner encouraged him to use the title "controller" to add legiti- macy to his role in the small business until the official controller was hired in May 2018, but said it was he, not Adriano, who managed the overall financial operations. Adriano prepared paycheques but the accountant made all the deductions and workers' compensation remit - tances. In addition, Adriano was not respon- sible for preparing financial reports, managing cash flow or benefits. He assisted with various operations but did not manage them, said the owner. In August 2016, Kartners took on Adriano as an employee and began paying him an annual salary based on an hourly rate. Adriano also re - ceived a bonus each year. Towards the end of 2016, the owner provided Adriano a choice of either a substantial salary increase with a "fair bonus" at the end of the year, or a modest sal- ary increase with a generous bonus. Adriano chose the latter. Adriano claimed that he would discuss bo- nuses for all Kartners employees with the own- er each year and he prepared the cheques him- self, but the owner denied discussing a bonus as part of Adriano's compensation. According to the owner, "there were no promises made with respect to bonus" and starting in 2014, the company started paying a Christmas bo - nus to active employees instead of giving them a gift. The amount of the bonus was based on how well the business had done that year and whether the company could afford it. The com- pany did well in 2016 and 2017, so the bonuses those years were large to reflect that, he said. Termination without cause or notice On Oct. 30, 2018, the owner met with Adriano and gave him a termination letter with an of- fer of 14 weeks' pay, his final paycheque, an- other cheque for two weeks' pay in lieu of no- tice, and a record of employment. The owner didn't offer an official reason for dismissal, but discussed Adriano's lack of qualifications. Adriano mentioned that he needed to obtain a designation, but "only to update and add to my credentials and not because I lacked qualifications and experience." After the termination meeting, the own - er followed Adriano to his workstation, watched him gather his belongings and say goodbye to co-workers, and escorted him to his car. He sued for wrongful dismissal, claiming common law reasonable notice of 13 months. He also claimed aggravated dam - ages for the owner's conduct after his termi- nation, following and watching over him as he prepared to leave and then "rushing" him out of the building. Adriano said he applied for more than 50 jobs over the next year and worked with a headhunting agency. He found two part-time positions, but didn't find a full-time position until Dec. 2, 2019, earning the same base salary as he did with Kartners. The court found that Adriano exaggerated his role with Kartners, noting that his previ - ous jobs were "comparatively minor" and his qualifications along with Kartners' eventual hiring of someone with certifications for the controller position as it grew indicated that the owner's version of his duties was more ac - curate. Adriano was "a valued employee and contributor," but also also "industrious and ambitious to a fault," said the court. The court considered Adriano's age of 53 at the time of dismissal to be neutral, as there was no evidence it had a negative impact on his job search. As for the availability of comparable employment, although it took Adriano a year to find a similar full-time position, he wasn't assigned the management roles or high degree of responsibility he claimed to have had with Kartners, so "comparable employment for him was not strictly limited to bookkeeping or ad - ministrative positions," the court said. The court also found that Adriano's service time should include his initial part-time ser- vice, and so was five years. Based on this and the other factors, the court determined that Adriano was entitled to five months' notice. This would include the bonus for 2018, as the notice period encompassed when that year's bonus was awarded in December, but not 2019 as the bonus was only paid to ac - tive employees. The court found that Kartners had "a well-established and invariable prac- tice of paying each active employee a bonus at the end of the year," despite the owner's claim that it wasn't part of employee com- pensation. Kartners was ordered to pay Adriano five months' salary of $27,083.30 plus $4,500 for the 2018 bonus, minus his earnings from one part-time job he had worked during part of the notice period. The court denied Adriano's claim for aggravated damages, finding that the owner was "respectful and appropriate" dur - ing the termination meeting and accompany- ing him as he prepared to leave was not in bad faith. It may have been "embarrassing and up- setting for Mr. Adriano," but it wasn't unduly insensitive, said the court. For more information, see: • Adriano v. 0886899 BC Ltd. (Kartners Bath- room Accessories), 2021 BCSC 166 (B.C. S.C.). « from EXAGGERATION on page 1 Worker assisted with various operations, but didn't manage them CREDIT: OVELYDAY12 iSTOCK The worker was a valued employee and contributor, but he exaggerated his role and qualifications. Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog features topics such as temporary layoffs during the pandemic, health and safety for remote workers and employee mental stress during COVID-19. You can view the blog at www.employmentlawtoday.com. Bottom each based in the disability stances. advice to For • Leaf CanLII

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