Canadian Employment Law Today

Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends Employer pays price for passing over downsized employee Redundant employee gets 18 months' pay after not getting hired for similar job posted before termination date By JEffrEy r. SmiTh A NEwfouNdlANd and Labrador em- ployer wrongfully dismissed an employee whose job it eliminated in restructuring moves but failed to hire when a similar posi- tion became available before the employee's termination date, an adjudicator has ruled. John Mathieu, 61, was hired by a St. John's, N.L.-based subsidiary of Inmarsat, a provider of global mobile satellite commu- nication services, to be an account special- ist on a temporary basis as a maternity leave replacement on Dec. 29, 2009. e assign- ment was to last until March 2011. On March 22, 2011, the employee on ma- ternity leave decided not to return to work. Stratos offered Mathieu the account spe- cialist position on a permanent basis and Mathieu accepted. Mathieu continued in the position with- out any performance issues or discipline until August 2013, when Inmarsat decided to sell its retail energy operations to another company, RigNet. is led to a corporate restructuring that resulted in Mathieu's job being declared redundant, along with another account specialist. Inmarsat deter- mined which employees were redundant based on a number of factors including overall contributions and skills. Insmarsat provided Mathieu with a notice of termination indicating his last day of work would be Jan. 31, 2014. e company also offered him a retention bonus of $4,162 and severance package if he remained in the com- pany's employment with a satisfactory per- formance up to the last day of work. If he left before then or was "successfully placed in a comparable permanent position with Inmar- sat," the severance package wouldn't apply. Mathieu accepted the terms of the ter- mination letter and release and Inmarsat provided him with a reference outlining his skills and job performance. Similar job posted before termination date On Sept. 26, 2013, another account special- ist decided to leave his job and Inmarsat posted the position both inside and out- side the company. e job requirements were similar to Mathieu's job, so he applied for it in early October. However, he wasn't successful and an external applicant was hired. Inmarsat's reasoning was that while Mathieu could do the job, he would have re- quired more training and others would have to fill in to cover his transition period. e external candidate had more than 20 years of relevant experience. Mathieu filed a complaint alleging unjust dismissal seeking compensation over and above his severance package. He did not want his old job back. Inmarsat objected to the complaint, ar- guing that Mathieu was still employed when he filed the complaint in November 2013 and there was no dismissal yet. It also said Mathieu had been allowed to seek legal advice before he accepted the agreement. However, the adjudicator found there was no reason Mathieu couldn't file the com- plaint once the termination was official, and his acceptance of a severance package didn't preclude seeking further relief under the Canada Labour Code. e adjudicator found that it was the in- tention of Inmarsat to discontinue Mathieu's functions, though when the other account specialist position became open Mathieu's functions had not yet been discontinued and wouldn't be until Jan. 31, 2014. Inmar- sat had released an information document indicating it was open to re-employing employees who were declared redundant, if possible, and employees who wanted to pursue a position within the company could contact the appropriate department. However, the adjudicator found Inmarsat did not apply its stated procedures when Mathieu applied for the open account spe- cialist position. e company acknowl- edged Mathieu could do the job and it was a "comparable permanent position." ough the external candidate had more overall ex- perience, the reasons for not hiring Mathieu were not reasonable, said the adjudicator. "e employer failed to give appropriate weight to the fact that their own employee, an account specialist, had just been declared redundant due to corporate restructuring and was looking for work in a similar po- sition," said the adjudicator. "e appoint- ment of an external applicant over the in- ternal applicant who had just been declared redundant lacked justification or rationale. ere was no valid economic reason estab- lished for the employer's decision." e adjudicator determined the hiring of the external candidate was "an arbitrary de- cision" and Inmarsat "no longer wanted to have (Mathieu) in their employ." e adjudi- cator found Inmarsat did not use good faith in dealing with Mathieu and the result was unjust dismissal. Inmarsat was ordered to pay Mathieu the equivalent of 18 months' salary in addition to the severance package, plus Mathieu's le- gal fees. for more information see: • Mathieu and Inmarsat Solutions (Cana- da) Inc., Re, 2014 CarswellNat 4655 (Can. Lab. Code Adj.). WEBinars Interested in learning more about employment law issues directly from the experts? 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