Long-time production manager awarded 18 months' notice

Employer knew 56-year-old who was functionally illiterate would have a hard time finding comparable employment: court
|employmentlawtoday.com

A production manager in Woodstock, Ont., who was let go without cause after 36 years on the job was awarded nearly $70,000 by the Ontario Superior Court of Justice.

Roger Deschenes was born in a French speaking community in New Brunswick. He moved to Ontario and began working for Metal Shapes Manufacturing Inc. in Woodstock, Ont., on Dec. 10, 1966, as a press operator.

He was employed by the company for 36 years and when his employment was terminated without cause on June 3, 2002, he was the production manager. He was paid $55,000 per year plus benefits and was entitled to six weeks’ vacation.

Since Deschenes was raised in a French speaking community, and did not complete elementary school, his ability to read and write in English was very limited. He was described at the trial as being functionally illiterate.

In the late 1990s, Joseph Williams, the company’s owner, decided that to be competitive the company would have to adopt ISO standards. As a result it began to implement ISO policies and procedures in an effort to obtain certification.

By 1999 it had become apparent to Williams that the company could not meet ISO standards without the help of someone who had been through the certification process. In January 2000 Brian Stapleton was hired by Metal Shapes. In April 2002 Stapleton became the production manager and Deschenes was demoted.

Williams said Deschenes was not literate enough to prepare the documentation required to meet ISO standards.

When Deschenes was demoted, he was left with duties related to shipping, receiving and maintenance as well as dealing with the union. He did not have any supervisory responsibilities and he was not given a new title. Williams said Deschenes was not happy with the demotion but he carried on and did his best to fulfill his remaining job requirements.

By 2002 Williams said it was apparent that under the ISO program there was no place for Deschenes at the company. Deschenes could not do the work or the reports required to meet ISO standards. As well, the company could not keep him on as an hourly rated employee and maintain his seniority or his salary. As a result, Williams decided to terminate his employment.

In May 2002 Williams met with him and told him he was going to terminate his employment as of Aug. 30, 2002. He said he told Deschenes he should consider going to work for Woodstock Millworks, a company owned by Williams, or at Thomas Built Buses, a company Williams expected to acquire by October 2002.

Deschenes told Williams he wanted to stay at Metal Shapes but Williams said this was not an option. On June 3, Deschenes was given a letter terminating his employment as of Aug. 30. Deschenes was also told that if he signed a release he would be paid an additional $15,000 in bi-weekly payments. He was also offered assistance to help find other employment.

Deschenes consulted a lawyer, and the lawyer sent a letter to the company on July 12 advising it that it had wrongfully dismissed Deschenes. In view of his age (Deschenes was 56 at the time), limited ability to read and write and his length of service, the lawyer said he was entitled to notice of 18 to 24 months. Upon receipt of the letter, Williams sought to extend the working notice period to Jan. 31, 2003, and he again offered to help Deschenes find other employment.

Deschenes decided to treat the termination and lack of adequate notice as a breach of contract and started an action for damages.

What the court said

Justice William Jenkins of the Ontario Superior Court of Justice said the employer was entitled to dismiss Deschenes provided it gave him reasonable notice.

What constitutes reasonable notice depends on the nature of the employment, length of service, age and the availability of similar employment.

Deschenes had been with the company for more than 30 years, and served in a supervisory role for more than 25 years.

“When he was dismissed he was 56 and had limited ability to read and write,” said Justice Jenkins. “The defendants were aware of his shortcomings, as they had previously determined that he could not function in an ISO environment.”

Therefore, the court said, the company must have known when it terminated his employment that Deschenes would have difficulty finding a comparable position.

Justice Jenkins said 18 months was a reasonable notice period in the circumstances.

“After the letter of termination was given to (Deschenes), his counsel contacted the defendant Williams, who sought to extend the notice period from Aug. 30, 2002, to Jan. 31, 2003,” said Justice Jenkins. “In view of the fact that (his) employment was terminated, and without reasonable notice, I am satisfied that the contract of employment was breached and it was not open to the defendants to unilaterally extend the notice period.”

The employer attempted to argue that Deschenes had not attempted to mitigate his damages because he didn’t look for work and didn’t take jobs at Woodstock Millworks and at Thomas Built Buses.

But the court said no interviews were arranged and no firm jobs offers were made to Deschenes. No written offers of employment were ever given to Deschenes by either of those companies.

Deschenes didn’t start looking for work until early in 2004. The court said this was understandable because Deschenes became depressed after being fired and required psychological treatment. He also had eczema on his hands, which took several months to heal.

“I find that it was reasonable for (Deschenes) to wait until he recovered before seeking other employment,” said Justice Jenkins. “In addition, I am satisfied that any delay in seeking other employment makes no difference in this case as there was virtually no chance that the plaintiff would find comparable employment.”

Deschenes worked for three months after he was terminated and was paid for that period. That meant Metal Shapes had to pay him for the remaining 15 months of the notice period at $4,583.33 per month or $68,749.95.

The court also awarded him drug costs of $688.10 for the notice period.

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