50 is Not the New 40 When Assessing Reasonable Notice of Termination

Facts

The plaintiff, Jafeef Mohammed, brought an action against his former employer, Dexterra, for wrongful dismissal. The plaintiff began working with Dexterra as a supervisor in June 2018. He was terminated on November 11, 2019 without cause and given four weeks’ notice. He was 51 years old.

Prior to his employment with Dexterra, the plaintiff had worked for a series of different cleaning companies including Sodexho, Marquise, and Hallmark. At his last employer, Hallmark, the plaintiff had worked graveyard shifts. As he got older the plaintiff found this was taking a toll on him and decided to look for a position with daytime hours. In early 2018, the plaintiff asked a former co-worker of his, Mr. Marsh, if he knew of any jobs with the possibility of dayshifts. In particular, the plaintiff asked if Mr. Marsh’s employer, Dexterra, had any positions. Mr. Marsh told the plaintiff there were shifts available. Mr. Marsh recommended the plaintiff and he was introduced to Dexterra’s senior operations manager. The plaintiff was offered a job.

The plaintiff accepted Dexterra’s employment offer and signed an employment contract on June 20, 2018, which provided that his employment would begin on June 22, 2018. There was no provision purporting to contract out of common law notice, except with regards to a probationary period of 90 days. For a period of time, the plaintiff continued to work with Hallmark and Dexterra. A fulltime position became available at Dexterra. The plaintiff was offered the job without a job interview. The plaintiff accepted and resigned from his position with Hallmark. There were no promises made regarding length of service, prospects for advancement, or termination of the employment contract.

In the plaintiff’s full-time position with Dexterrra he was responsible for ensuring that Tsawassen Mills Mall was properly cleaned and ready to open to the public in the morning. In the past, Dexterra had issues with the night shift crew’s cleaning capabilities and had to open the mall late as a result. On October 18, 2019, the plaintiff and all other employees at Tsawassen Mills Mall were advised that because Tsawassen Mills Mall was terminating their contract with Dexterra, their employment would be coming to an end. The plaintiff was given four weeks’ working notice.

The plaintiff was able to secure fulltime employment with Alpine Maintenance starting November 11, 2019. However, this employment was short lived and ended on January 13, 2020. The plaintiff testified that he had been unable to find work in his field since.

Issues

1. Was the plaintiff induced to work for Dexterra? If he was, what effect does that have on the notice period?
2. Were Marquise and Hallmark sufficiently related to Dexterra that the plaintiff’s employment with those companies should be taken into account in determining the notice period?
3. Did the plaintiff mitigate his damages?

Legal Test/Analysis

The court held there was no inducement. 

The court held the plaintiff did not provide any evidence to demonstrate that Dexterra was related to his former employers.

The court held that current economic circumstances, such as COVID-19, can be relevant to mitigation if they impact the availability of employment.  While economic circumstances at the time of termination may be a factor, they should not attract undue influence.  Since the plaintiff had only been employed for 17 months, the notice period should fall into the line of “short service” cases, taking into account the plaintiff’s job duties and age.

The court found the plaintiff’s job position was non-managerial. However, he was not a low level employee as he was responsible for a crew of workers carrying out their tasks. Considering the previous issues with the crew at Tsawassen Mills Mall, the plaintiff’s position was crucial to the company’s performance at the mall.

Regarding age, the court noted that individuals over 45 have difficulty finding work.  Also, while each case must be determined on a case by case basis with respect to age, the court found the traditional approach (that age over 50 is seen as a potential detrimental factor to finding employment) remains in place.

The plaintiff’s unchallenged evidence demonstrated that he made efforts to find employment following his termination from Alpine Maintenance. Dexterra was unable to demonstrate that the plaintiff failed to mitigate.  He was awarded five months’ pay in lieu of notice.

Takeaway

If an employee is over 45 and entitled to common law notice, employers should be aware that their notice period will typically be longer.  To avoid liability for common law notice, employers should ensure termination provisions are drafted to limit the notice period.  Employees and employers should keep in mind that current economic circumstances, such as COVID-19, may have an impact on mitigation obligations.

This update was authored by Deanna Froese. Have questions regarding the topic discussed? Contact Deanna at [email protected].