Alberta court slashes damage award

Lower court awarded 35-year-old worker with less than one year on the job more than three months' notice
|employmentlawtoday.com

The Alberta Court of Queen’s Bench slashed the damages awarded for wrongful dismissal in a case where the trial judge did not properly take into account the different factors for what constitutes reasonable notice.

Dean Hnatiuk was awarded $11,808.29 in damages for wrongful dismissal, or 13.5 weeks’ notice, by the Alberta Provincial Court after being on the job for less than a year.

His employer, R.W. Gibson Consulting Services Ltd., appealed that decision to the Alberta Court of Queen’s Bench.

The original verdict

The Provincial Court judge concluded Hnatiuk had been wrongfully dismissed based on her findings that Hnatiuk had not received any clear directions regarding expected performance improvements, nor had he been given any formal written warnings of inadequate or improper performance.

Hnatiuk, a 35-year-old sales manager, was fired on Jan. 22, 2003, after less than a year on the job.

The employer argued it was entitled to dismiss Hnatiuk for his acts of dishonesty, including charging gasoline not used for business purposes to the company.

Kurt Gibson, sales and marketing manager of R.W. Gibson Consulting, said he addressed the issue of the stolen gas with Hnatiuk and issued warnings to him at the end of his probationary period.

But the Provincial Court said the employer could not argue just cause for dismissal on the basis of conduct that had already been addressed, and that it was significant that the company had given Hnatiuk a $5,000 raise at the end of his probationary period.

“An employee who receives a raise at the end of a probationary period should not, without more, be expected to understand that his performance is at an unacceptable level and that his employment is in jeopardy,” the court said.

The Provincial Court awarded Hnatiuk 13.5 weeks’ notice, the time between when Hnatiuk was fired on Jan. 22, 2003, and May 1, 2003, when he found another job.

The employer appealed that decision.

Higher court overturns decision

The Alberta Court of Queen’s Bench heard the appeal. It agreed with the lower court that the employer had no cause to terminate Hnatiuk’s employment.

It also said it would not interfere in the trial judge’s decision as to the reasonable notice period, “unless the trial judge erred in principle by applying the wrong test or deciding on a reasonable notice period which was inordinately high or low.”

In this case, it found the Provincial Court had not used the proper test to determine damages. It said there is no definitive test for determining what constitutes a reasonable notice period, but certain guiding principles have been articulated and generally accepted as set out in

Bardal v. Globe & Mail

.

In

Bardal

an Ontario court said reasonable notice should take into account:

•the character of the employment;

•the length of service;

•the employee’s age; and

•the availability of similar employment.

In support of the decision to award 13.5 week’s notice to Hnatiuk, the Provincial Court did not demonstrate that it applied the

Bardal

factors, the appeal court said. It said the lower court came up with that number based on “the loose calculation of one month of notice for each year of employment.”

Even based on that loose calculation, the notice period was too high for a 35-year-old employee with less than one year of service, the Court of Queen’s Bench said. It found the Provincial Court had erred in awarding that amount of damages, both in failing to apply the appropriate test and in relying on case law that does not support its conclusion.

It said the damage award was “inordinately” high considering the facts of this case. Using the

Bardal

factors, the Alberta Court of Queen’s Bench determined Hnatiuk was entitled to one month’s notice, or $3,051.21.

For more information see:

Hnatiuk v. R.W. Gibson Consulting Services Ltd.

, 2005 CarswellAlta 158, 2005 ABQB 78 (Alta. Q.B.)

Bardal v. Globe & Mail Ltd.

, 1960 CarswellOnt 144, [1960] O.J. No. 149, [1960] O.W.N. 253, 24 D.L.R. (2d) 140 (Ont. H.C.)


Court says phone call troubling

In an interesting side note to the

Hnatiuk

decision, the Alberta Court of Queen’s Bench chided the Provincial Court judge for a telephone call she took from Hnatiuk.

The trial judge said she received a call from him after she had given oral judgment. During that phone call, Hnatiuk pointed out that she had incorrectly calculated the notice period from Jan. 22, 2003, to May 1, 2003, as 9.5 weeks when, in fact, it was 13.5 weeks.

The Alberta Court of Queen’s Bench said it was “somewhat troubled” that the Provincial Court judge took that phone call, and that she should have involved all of the parties.

Under Rule 7 of the Code of Professional Conduct of the Law Society of Alberta, a lawyer must not communicate with the court respecting a matter unless the other parties to the matter (or, if represented, their counsel) are present and have a reasonable prior notice, or unless the circumstances are exceptional and are disclosed fully and completely to the court.

“It would not appear that the circumstances were so urgent as to enable (Hnatiuk) to have a private conversation with the trial judge under the circumstances,” the court said. “Although (Hnatiuk) is not a lawyer and cannot be held to the standards set out in the code, in circumstances such as this the courts must guard against permitting a person who is not a member of the Law Society of Alberta to do what is precluded by the code."

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