Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2015 More Cases 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 includes a tool for readers to offer their comments, so discussion is welcome and encouraged. The blog features topics such as reasonable notice, who pays for damage caused by an employee, summary dismissal, and the effects of events like the Pan Am Games on commuting. You can view the blog at www.employmentlawtoday.com. again. However, Armstrong became an- gry and cursed at him in the reception area where clients of a lawyer with whom they shared space were present. Armstrong filed a claim for additional no- tice in June 2013 and Lendon asserted Arm- strong's behaviour provided just cause for dismissal. e court found Lendon was prepared to "seriously mislead members of the Owen Sound legal community who might want to hire" Armstrong by providing a positive reference letter that ignored the issues he had with Armstrong over the past few years, which hurt his credibility. "I also find it improbable, and do not ac- cept his evidence, that (Lendon) was un- aware that (Armstrong), a 26-year employee had any rights beyond an eight week statu- tory entitlement," said the court. "at long service employees have a significant entitle- ment would be known to any intelligent per- son who read or watched the news." e court also noted that even if Arm- strong was guilty of the alleged misconduct, it would not be sufficient to provide just cause. "An emotional demand for a raise and a threat to quit do not amount to just cause af- ter 26 years of service," said the court. "An an- gry outburst on learning that you are being terminated on less than four months' notice after 26 years of service, considered with the totality of the evidence, does not amount to just cause." In addition, Lendon testified that he thought the outburst was out of character and he was concerned about her psycho- logical health. Since there was a question of whether Armstrong was culpable for her be- haviour, this further weakened the just cause argument. It was also clear that Lendon decided to retire rather than dismiss Arm- strong for just cause, and as a result owed her reasonable notice for such a long-term em- ployee. As a result, Armstrong was wrong- fully dismissed, said the court. Lendon also submitted that the notice period should be reduced because he had modest earnings over the period of time he employed Armstrong. However, the court found "ability to pay is generally not a factor to be considered in assessing damages for breach of contract." e court found Armstrong had "a highly responsible position" with many years of service, and her prospects of new employ- ment would be difficult given her stress and other health problems along with Lendon's allegations of just cause against her. As a re- sult, it determined Armstrong was entitled to 21 months' notice. Minus the three-and- a-half months of working notice and some earnings Armstrong had in mitigation, Len- don was ordered to pay $46,407 in wrongful dismissal damages. In addition, e court found Armstrong was treated unfairly and the allegations of just cause were "baseless and hurtful," warranting another $7,500 in aggravated damages and bringing the total payable to Armstrong to $53,907. See Arm- strong v. Lendon, 2015 CarswellOnt 7605 (Ont. S.C.). Long-term employee deserved more notice « from RETIRING on page 1 e letter from Kucera's lawyer essentially eliminated a chance Qulliq could trust her again and therefore was a repudiation of the trust-dependent employment relationship, the court said. Kucera appealed to the Nunavut Court of Appeal, arguing that the trial court, in finding no constructive dismissal, failed to determine whether she was dismissed without cause. e appeal court agreed with the trial court's findings that the letter from Kucera's lawyer was not an attempt to resolve the differences Kucera had with her employer and the only option it provided for was to negotiate a severance package — and that she would continue to work for Qulliq only until an agreement on a severance package was reached. "At no point does the letter indicate that Ms. Kucera is prepared to remain in her employment; this is not the letter of an employee who was ready, able, and willing to continue in her current position," said the appeal court. "Rather, it was the letter of an employee who had purported to im- pose unilaterally upon the employer a new agreement — that she would continue in her current position only so long as, first, the employer participated in negotiations designed to bring about an end to the em- ployment relationship, and secondly, such negotiations appeared to the employee to be 'making progress.'" Both courts also noted Kucera had sent copies of the letter to members of the board as well as the Minister of Energy, which was an attempt on her part to politicize the mat- ter and was "incongruous with a continuing employment relationship." e appeal court upheld the trial court's finding that Kucera's letter was a repudia- tion of the employment contract and Qul- liq's response the next day was an accep- tance of that repudiation. As a result, there was no constructive dismissal, said the ap- peal court. e appeal court also found once the trial court determined there was no construc- tive dismissal and Kucera instead repudiat- ed her employment contract, there was no need for it to examine the issue of whether Kucera was dismissed without cause. e appeal court upheld the trial court's decision that there was no constructive dis- missal and it was Kucera who terminated her employment. For more information see: • Kucera v. Qulliq Energy Corporation, 2015 CarswellNun 12 (Nun. C.A.). 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