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 is entitled to more than $140,000 in wrongful dismissal and aggravated damages after less than three months' service, due to the employer's induce - ment and insensitive manner of dismissal, the B.C. Supreme Court has ruled. Shahram Younesi was a professional engi- neer with more than 20 years of experience, mostly in mechanical engineering. In August 2018, he was contacted by a professional per- sonnel recruitment company about an "inter- esting vacancy" for the position of engineer- ing manager with Kaz Minerals. At the time, he had been employed as a project manager with a company involved in gas-processing fa- cilities for nearly two years. Kaz Minerals was a multinational company that managed the development and construc- tion of major projects around the world. In- corporated in the Netherlands, the company had branch offices in Vancouver, Moscow and Kazakhstan. The Vancouver office occupied space within the offices of an engineering company, Fluor Canada, that was involved in the design and development of a copper-pro - phyry mine in Russia, for which Kaz Minerals was assisting and supervising. Younesi expressed interest in the engineer- ing manager position and a series of inter- views and other communications ensured. The company asked for information on Younesi's compensation, and Kaz Minerals offered Younesi the position on Oct. 30 with better pay and vacation. He would also be based in Vancouver, where his home was and where his parents lived. Younesi signed the of - fer letter two days later. The offer letter included an agreemaent stipulating that Younesi would be assigned to the Russian mine project, working out of Canada, for "one year and 10 months ap - proximately." The agreement also stated that "the length of the assignment is expected to last until Sept. 30, 2020, unless being earlier terminated/extended by notice from the com- pany prior to the end of the assignment term" and the assignment term was "based on pres- ent business requirements and is subject to change at the sole discretion of the company." The agreement also had a termination clause in which "each party shall give one month written notice in case of employment termination." However, it also featured a dis - claimer that stated the job offer didn't have any legal power and in the event of any differ- ent between it and the employment contract, the contract would prevail. Contract superseded offer letter Younesi resigned from his project manager job and began working for Kaz Minerals on Nov. 12. Shortly after he started, he was asked to sign a formal employment contract and assign - ment letter. The contract said that the employ- ment "shall be for an indefinite period" and it superseded all previous agreements about the terms and conditions of employment. It reiter- ated the one month's written notice required by either party to terminate the employment relationship and added that if he refused a re- assignment if one became necessary, it would be deemed a resignation. However, Younesi didn't last long with Kaz Minerals. Two-and-a-half months after he started, the company terminated his employ- ment on Jan. 28, 2019. At the termination meeting, Younesi asked why he was being terminated. The project director and deputy project director told him that he didn't have the respect of senior management, he wasn't a good engineer or manager, and he was "an embarrassment to the company." He was pro - vided with one month's pay in lieu of notice. Younesi sued for wrongful dismissal, claim- ing that Kaz Minerals promised him full- time employment until Sept. 30, 2020 and it induced him from secure employment. He claimed damages for the balance of the earn- ings he would have received through the end of the contract period, plus aggravated and puni- tive damages for the company's bad-faith con- duct and the insensitive nature of his dismissal. Kaz Minerals denied that it made any promise of secure employment for any pe- riod of time and pointed to the offer letter, that stated the assignment was expected to last until Sept. 30, 2020, unless terminated earlier and the length of employment was subject to change at the company's discretion. The court noted that Kaz Minerals' busi - ness model involved employment contracts with assignment to particular projects, which were subject to change at the discretion of the company. It also agreed that no fixed-term representation was made to Younesi, although both he and the company expected the proj - ect to last until September 2020 at the least. That expectation "does not as a matter of law, convert Mr. Younesi's employment agreement into a fixed-term contract," the court said. However, the court found that the one-month termination provision was unenforceable be - cause it failed to comply with the minimum notice requirements set out in the B.C. Employ- ment Standards Act. As a result, common law reasonable notice applied — which the court determined should be four months based on the importance of the position, the high salary, and the availability of similar employment. The court also found that Kaz Minerals in - duced Younesi to leave his previous employ- ment, as its recruiter had initiated contact and it prepared a superior compensation package based on information it requested from him about his pay with his previous employer. "It was designed to be an irresistible offer having regard to Mr. Younesi's personal cir - cumstances," said the court in adding another two months to Younesi's notice entitlement. "By any measure, it amounts to inducement far beyond the standard 'wooing' of a pro- spective employer that might be 'taken with a large grain of salt.'" The court also found that that the termina- tion meeting was "unduly harsh, insensitive and, indeed, insulting" that effectively at- tacked Younesi's competence. This conduct, along with the fact that Kaz Minerals should have known the one-month termination pro- vision breached employment standards leg- islation but it maintained that he wasn't en- titled to anything else, amounted to a breach of the company's obligation for good faith and fair dealing, the court said in awarding aggravated damages. However, the court de- termined that the company's conduct was not malicious or outrageous enough to warrant punitive damages. Kaz Minerals was ordered to pay Younesi six months' pay in lieu of notice — $128,383 — plus $12,500 in aggravated damages. For more information, see: • Younesi v. Kaz Minerals Projects B.V., 2021 BCSC 614 (B.C. S.C.). BY JEFFREY R. SMITH B.C. engineer awarded 6 months' notice after less than 3 months' work Company's inducement of worker from secure employment, bad-faith conduct in dismissal warrant longer notice, aggravated damages The offer letter indicated that the project assignment would last 22 months unless the company terminated or extended it.

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