One of the most common issues in wrongful termination cases is how much severance an employee may be owed. Among the most important factors in determining severance is how long the employee had worked for the employer. However, a recent case heard by the Supreme Court of British Columbia saw the court dealing with an employee who was terminated before having a chance to work a single day.

Terminated Before Day One

The employee applied for a job with the employer in mid-July, 2016 and was invited to meet with the employer in early September. A series of meetings occurred, resulting in a mid-October offer of a formal employment contract (the Contract) by the employer, which the employee signed and returned on October 16. The contract stated the employee was to begin work on November 1. On October 29, the CEO of the employer met with the employee and advised him the employer was retracting its offer of employment. The employee received a letter confirming the retraction that same day. Following the retraction of employment, the CEO and the employee exchanged a series of emails. During this time, the CEO offered the employee short-term work, though at a reduced salary. The employee did not respond to these offers and found work with another company on December 19, 2016. The court laid out three issues to be determined:

  1. Did the defendant’s “retraction” of the Contract constitute a wrongful dismissal entitling the plaintiff to seek damages in lieu of reasonable notice? Included in this issue is the question of whether the defendant could rely on the probation clause of the Contract to terminate the plaintiff’s employment without obligation;
  2. If the plaintiff was entitled to reasonable notice, what is the appropriate period? And;
  3. Did the plaintiff fail to mitigate his losses?

Was The Employee Wrongfully Dismissed?

The court was quick to point out case law supporting the position that wrongful dismissal can occur before an employee starts a job. The court then addressed whether the probationary period clause would allow the employer to terminate the employee without notice. The probationary clause in the Contract stated the “Employee’s employment shall be subject to a probation period of three months beginning on the Effective Date during which time the Employer may terminate the employment without notice or cause.” The court found the probationary clause was not in effect at the time of termination, since it was not to kick in until November 1, two days after the employee was terminated. Furthermore, the court pointed out that a probationary clause does not mean an employer can terminate an employee without any cause at all. Instead, the time is meant to provide the employer with a chance to perform a good faith assessment of the employee.

The Question of Reasonable Notice

The court then looked at what the period of reasonable notice should be. The court found a period of six weeks was reasonable, writing:

“In the circumstances of this case, the factors weighing in favour of a longer notice period include the nature of the position, the relatively high salary and the fact that the plaintiff left secure employment to join the defendant, although he was not recruited. The factors weighing in favour of a shorter notice period include the minimal length of service, the precariousness of the position and the availability of alternate employment.”

Did The Plaintiff Fail To Mitigate?

Prior to finding a new job, the employee did not respond to short-term offers of employment from the employer. His reasoning, he explained, was because he could not trust the employer. The court found the employee attempted to find a new job, resulting in his starting work in December of that year. Furthermore, the court found the employer’s offers of short-term employment to be unreasonable, writing:

“(The CEOs) emails of November 2 and 4, 2016, were vague and lacked any particulars about start date, number of available hours and scope of work, as well as specifics about what the plaintiff would be paid. In the November 2 email, Mr. Nabavi referred to a “reasonable hourly wage” that would be “perhaps something close to what you were getting paid before”. In the November 4 email he said he would be “happy to pay at least the same amount as your last employer”. While that suggests the defendant would pay a similar rate to what the plaintiff earned previously, absent any details about the amount of work available, the plaintiff could not properly assess how much money he could expect to earn.”

The court ultimately ordered the employer to pay the employee for six weeks of work based on an annual salary of $125,000, resulting in a judgment for $14,424. The lawyers at NULaw represent both employers and employees in all employment law matters, including wrongful termination. We can help employers draft language in the interest of avoiding vague language while also providing legal guidance throughout the employment relationship. We also help employees understand their rights, including whether or not they may have been wrongfully terminated. Contact us online or call us at 416-481-5604 to schedule your consultation today.

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