MacGillivray v. Telus Communications Inc., 2004 CarswellBC 2490, 2004 BCSC 1394 (B.C. S.C.). Robert MacGillivray worked for 30 years for Telus Communications, and one of its predecessor companies, until his employment was terminated in June 2002. In addition to other claims to be resolved at a regular trial, he sought an immediate declaration regarding his pension rights and damages for wrongful dismissal.
MacGillivray had worked his way up the corporate ladder, starting with the company as an installer/repairer in May 1972. At the time of termination he was the sales director of business solutions with 10 sales representatives and a clerk working for him and with the authority to hire and fire the sales reps. The British Columbia Supreme Court assessed his position as being above the level of middle management.
MacGillivray was a member of the company’s Pension Plan, which provided for retirement at age 65 or for early retirement in specified circumstances, including one which read that an employee of “30 years or more may, with the consent of the company, retire and be granted a pension.”
MacGillivray’s term of employment reached 30 years on June 23, 2002. Two days later he was given a letter of termination as part of the company’s downsizing. The letter advised him that his last day on the job would be on June 28 and that he would receive a salary continuance until Dec. 28, 2003. After that he would be eligible for an unreduced pension. MacGillivray did not accept the offer which was contained in the letter but Telus continued to pay him the salary continuance and medical and dental benefits.
In June 2003 MacGillivray sent a letter to Telus setting out his understanding that he had achieved 30 years service a year before, and that he was entitled to a full pension from June 29, 2002, the day after the last day he was required to be on the job.
Telus replied that he wasn’t eligible for pension until after the continuance period. This, and the appropriate period of notice MacGillivray was entitled to, were the two basic issues the court had to decide.
The court ruled Telus should have awarded MacGillivray 21 months’ notice rather than the 18 he received via the salary continuance. His counsel had asked for 24 months but that was toward the upper limit of such cases, the court said.
MacGillivray was 51 years old, was in good health and had skills that could be transferable to another industry, decided the court. Furthermore, it ruled, if MacGillivray was given the maximum length of notice the court would “have no room” in considering the cases of Telus employees with more seniority and responsibility than him.
On the pension plan issue the court ruled Telus was not obligated to give its consent to MacGillivray’s pension application for early retirement. There was no implied term that Telus would give its consent to the early pension and Telus had never waived that right.
The company was paying MacGillivray a $6,056 per month pension after the period of the salary continuance but did not have to pay any pension at all during the continuance period, ruled the court.
This situation is different, however, for the three extra months which the court had ruled MacGillivray entitled to. In Girling v. Crown Cork & Seal Canada Inc., (1995), 127 D.L.R. (4th) 448 (B.C. C.A.), it was held that pension benefits are collateral benefits and should not be deducted from damages awarded for lack of proper notice of termination.
A similar case has been overturned by the Supreme Court of Canada, but the court ruled that Girling hadn’t been expressly overruled and its circumstances are close to those of this case.
As such the court found itself bound by Girling. It ruled that Telus is not allowed to deduct the amount of the pension payment received by MacGillivray for the three months after Dec. 28, 2003, from the award for damages made for the same period.
MacGillivray had worked his way up the corporate ladder, starting with the company as an installer/repairer in May 1972. At the time of termination he was the sales director of business solutions with 10 sales representatives and a clerk working for him and with the authority to hire and fire the sales reps. The British Columbia Supreme Court assessed his position as being above the level of middle management.
MacGillivray was a member of the company’s Pension Plan, which provided for retirement at age 65 or for early retirement in specified circumstances, including one which read that an employee of “30 years or more may, with the consent of the company, retire and be granted a pension.”
MacGillivray’s term of employment reached 30 years on June 23, 2002. Two days later he was given a letter of termination as part of the company’s downsizing. The letter advised him that his last day on the job would be on June 28 and that he would receive a salary continuance until Dec. 28, 2003. After that he would be eligible for an unreduced pension. MacGillivray did not accept the offer which was contained in the letter but Telus continued to pay him the salary continuance and medical and dental benefits.
In June 2003 MacGillivray sent a letter to Telus setting out his understanding that he had achieved 30 years service a year before, and that he was entitled to a full pension from June 29, 2002, the day after the last day he was required to be on the job.
Telus replied that he wasn’t eligible for pension until after the continuance period. This, and the appropriate period of notice MacGillivray was entitled to, were the two basic issues the court had to decide.
The court ruled Telus should have awarded MacGillivray 21 months’ notice rather than the 18 he received via the salary continuance. His counsel had asked for 24 months but that was toward the upper limit of such cases, the court said.
MacGillivray was 51 years old, was in good health and had skills that could be transferable to another industry, decided the court. Furthermore, it ruled, if MacGillivray was given the maximum length of notice the court would “have no room” in considering the cases of Telus employees with more seniority and responsibility than him.
On the pension plan issue the court ruled Telus was not obligated to give its consent to MacGillivray’s pension application for early retirement. There was no implied term that Telus would give its consent to the early pension and Telus had never waived that right.
The company was paying MacGillivray a $6,056 per month pension after the period of the salary continuance but did not have to pay any pension at all during the continuance period, ruled the court.
This situation is different, however, for the three extra months which the court had ruled MacGillivray entitled to. In Girling v. Crown Cork & Seal Canada Inc., (1995), 127 D.L.R. (4th) 448 (B.C. C.A.), it was held that pension benefits are collateral benefits and should not be deducted from damages awarded for lack of proper notice of termination.
A similar case has been overturned by the Supreme Court of Canada, but the court ruled that Girling hadn’t been expressly overruled and its circumstances are close to those of this case.
As such the court found itself bound by Girling. It ruled that Telus is not allowed to deduct the amount of the pension payment received by MacGillivray for the three months after Dec. 28, 2003, from the award for damages made for the same period.
