CHAUDHRI: Mishandling terminations can be costly for employers

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The COVID-19 pandemic has wreaked havoc on employment.

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This was a battle that was won by none. Employers and employees both dealt blow after blow, and reeled from the consequences of businesses left hamstrung.

Still, the courts must strike a balance between the losses of employers and employees. It is not an enviable task. Judges are now the custodians of the resuscitation of our fragile economies. Every employment decision creates a precedent that tips the balance favouring one side and penalizing another. All the while, both sides are still recovering.

And while many employees have been wondering if COVID-19 will result in greater severance packages, especially after many years of service, recent decisions have been reluctant to open the floodgates.

Take for example the recent case of Tom Russell, a lifelong employee of The Brick. In fact, it was the only long-term employment he ever had when he started working for a subsidiary of the Brick in 1984 at 21 years old.

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Russell was terminated in July 2020, along with several other employees, as part of the Brick’s restructuring during COVID-19. The 57-year-old’s length of service totaled 36 years and he was in a senior supervisory role directing 20 people.

At the time of his termination, he made $74,859 in salary and received competitive benefits.

At a summary judgment motion following his termination, Russell argued he was entitled to 30 months — well above 24 months of pay, the notional court maximum for wrongful dismissal damages — in part because he was terminated during the pandemic.

The Brick, on the other hand, submitted that 18 months was a reasonable notice period.

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In court, the judge scrutinized Russell’s termination letter. The court noted it was not fully compliant with the Employment Standards Act (ESA) offering Russell less than the minimum required continuation of benefits. More importantly, the court considered it a serious defect for the Brick not to advise Russell that if he declined the offer in the termination letter he would still be paid his ESA entitlements, which, given his length of service, totaled over six months of pay.

By failing to do this, the court found the Brick wasn’t honest and forthright with Russell.

Ultimately the court awarded Russell a full 24 months of pay in wrongful dismissal damages. The court did not find that COVID-19 along with other factors, like Russell’s longtime employment or lack of reference letter, to amount to circumstances that warranted an extension beyond the 24 months.

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While Russell did not receive more than 24 months, he was awarded additional damages. As a result of the defects in the termination letter and the Brick’s failure to furnish Russell with his ESA payments in a timely way, Russell was awarded $25,000 in moral and aggravated damages.

Striking the right balance between two hurting sectors is almost impossible.

Regardless of global turmoil, one fact remains true — courts will continue to expect employees to be treated with care, especially on termination. Perhaps, as the case of Tom Russell suggests, employers that fail to heighten their level of care and attention during a COVID-19 termination may see less tolerance in the courts than ever before.

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On to these week’s questions:

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Q. I am an hourly worker and was called back to work August 2021 after being laid off for COVID. A salaried employee was just hired and now my employer has reduced my hours. He says he can do this because I am just an hourly worker. My shift has always been 40 hours a week, but is my employer allowed to reduce my hours because I am not on salary?

A. No. Just because you earn an hourly wage doesn’t mean your employer can change the terms of your contract absent your agreement or considerable notice. If you were working permanent full-time, a reduction in hours could be considered a constructive dismissal depending on how significant the reduction is. This means your employer may have breached its legal obligations to you by failing to uphold a fundamental term of your employment, which in this case would be the number hours you work and, of course, how much income you’re paid.

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Q. I complained of harassment at work. A supervisor often asked me to go to drinks, to hang out after work and messages me on WhatsApp in the evenings. I really didn’t like it, and told HR to ask my supervisor to stop and that it made me uncomfortable. Next thing I know, I’ve been fired for a performance issue and my employer says I have been losing them clients which isn’t true. Is there any point in responding when they are being dishonest?

A. It can be extremely upsetting to get fired and to have your employer cite a reason for your termination that you do not believe is true. On a positive note, your report to HR can be a very strong piece of evidence to support your case for damages should you decide to pursue it. Get legal advice as you may benefit from speaking to a lawyer not only about your wrongful dismissal damages but your employer’s conduct leading up to your termination.

Have a workplace issue? Maybe I can help! Email me at sunira@worklylaw.com and your question may be featured in a future article.

The content of this article is general information only and is not legal advice.

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