Press operator terminated during downturn awarded 12 months’ notice
A former press operator was awarded 12 months’ notice after his employment was terminated without cause. Don Rowsell started working for Quebecor on April 10, 1987, as a shipper and receiver. Two years later he was assigned to one of six printing presses at a facility in Toronto where he occupied the position of press helper.
His co-workers helped “show him the ropes” as a press helper. He subsequently moved up to press feeder. Rowsell spent five years in that role as an apprentice. He was then promoted to second pressman. He held that position for seven years before his dismissal.
On Nov. 13, 2002, after almost 16 years with Quebecor, Rowsell was fired without any prior warning. The company said it would provide Rowsell with a severance package:
•salary continuance for a period of 32 weeks (ending June 27, 2003) to be paid on a weekly basis;
•if Rowsell found employment prior to June 27, 2003, Quebecor would pay him 50 per cent of the remainder in a lump sum;
•some of his group insurance benefits would continue for the period of salary continuance unless he obtained employment prior to the end of that period;
•his pension entitlement would be treated in the same way as his benefits; and
•Quebecor, through a third party, intended to assist him in finding a job.
Rowsell refused to sign the letter indicating acceptance of its terms. Nevertheless, Quebecor did pay him through June 27, 2003. Even when Rowsell found another job on March 31, 2003, Quebecor did not divide the remainder by two and pay him a lump sum. It just continued paying him his weekly salary as though he had not obtained any employment before the expiry of the salary continuance period.
Rowsell filed an action for wrongful dismissal, claiming the continuance period was inadequate. He said 12 months was a more reasonable notice period. The Ontario Superior Court of Justice agreed Rowsell was entitled to more notice, but calculating damages is an inexact science.
The court turned to the 1960 decision of Bardal v. Globe and Mail, the seminal case courts turn to in order to help pinpoint the notice period. In that case, an Ontario court outlined factors to be used in determining the period of reasonable notice. The factors include: character of the employment; length of service; age; and availability of similar employment. In the early 1980s courts began taking another factor into account in reaction to the tumultuous economy and the impact of downsizing.
“Accordingly the economic plight of the employer causing him to rid himself of a portion of his workforce is a factor which works in favour of decreased notice periods,” the court said in Rowsell. “However, courts realize that downturns in the economy cut both ways. They affect the employer’s ability to survive and they make it more difficult for the dismissed employee to find employment.”
In Rowsell, Quebecor said it had downsized because of severe competition. According to the company’s director of human resources, Quebecor was no longer number one in the world because of stiff competition. It undertook a restructuring and 12 locations were reduced to four. Nineteen other employees at the plant where Rowsell worked where also let go. The company had lost customers and overtime had drastically reduced.
The court generally accepted the evidence of Quebecor’s HR director. But it said there was no evidence as to the time when overtime was cut back, nor was the extent of the decline explained except to say it was “drastic.”
“Those matters are important whenever a court has to calculate damages for wrongful dismissal in relation to a reasonable notice period,” the court said. “Furthermore, it would have been helpful to me if Quebecor had introduced documents substantiating their economic plight. If public exposure were a problem, that concern could have been taken care of by a court order.”
The court said Rowsell was a “loyal, dedicated and valued employee.” He was technically skilled and had spent close to 16 years with the company. It pointed out that Quebecor presented him with a certificate on his 10th anniversary thanking him sincerely for his commitment.
Despite the lack of financial statements, the court said it accepted the company’s evidence it was going through a hard time. But it was also difficult for Rowsell, it said. Rowsell found a job less than five months after leaving Quebecor, although he had to be retrained for his new job and it paid less — $20 per hour compared to $27.35.
There was some argument that he had not mitigated his damages. He didn’t apply for employment with two companies that were in competition with Quebecor, but said he didn’t because he thought they were controlled by Quebecor. The court said the evidence simply didn’t support an argument that Rowsell had failed to mitigate his damages, and said he was “industrious” in his search for work. It awarded him 12 months’ notice.
The court calculated his annual salary to be $70,141.76. From that it deducted $59,612.68, the salary continuation from Quebecor and the amount he earned at his new job during the notice period. Therefore it awarded him $10,000 in damages.
For more information see:
• Rowsell v. Quebecor World Specialty Group, 2005 CarswellOnt 4051 (Ont. S.C.J.)
His co-workers helped “show him the ropes” as a press helper. He subsequently moved up to press feeder. Rowsell spent five years in that role as an apprentice. He was then promoted to second pressman. He held that position for seven years before his dismissal.
On Nov. 13, 2002, after almost 16 years with Quebecor, Rowsell was fired without any prior warning. The company said it would provide Rowsell with a severance package:
•salary continuance for a period of 32 weeks (ending June 27, 2003) to be paid on a weekly basis;
•if Rowsell found employment prior to June 27, 2003, Quebecor would pay him 50 per cent of the remainder in a lump sum;
•some of his group insurance benefits would continue for the period of salary continuance unless he obtained employment prior to the end of that period;
•his pension entitlement would be treated in the same way as his benefits; and
•Quebecor, through a third party, intended to assist him in finding a job.
Rowsell refused to sign the letter indicating acceptance of its terms. Nevertheless, Quebecor did pay him through June 27, 2003. Even when Rowsell found another job on March 31, 2003, Quebecor did not divide the remainder by two and pay him a lump sum. It just continued paying him his weekly salary as though he had not obtained any employment before the expiry of the salary continuance period.
Rowsell filed an action for wrongful dismissal, claiming the continuance period was inadequate. He said 12 months was a more reasonable notice period. The Ontario Superior Court of Justice agreed Rowsell was entitled to more notice, but calculating damages is an inexact science.
The court turned to the 1960 decision of Bardal v. Globe and Mail, the seminal case courts turn to in order to help pinpoint the notice period. In that case, an Ontario court outlined factors to be used in determining the period of reasonable notice. The factors include: character of the employment; length of service; age; and availability of similar employment. In the early 1980s courts began taking another factor into account in reaction to the tumultuous economy and the impact of downsizing.
“Accordingly the economic plight of the employer causing him to rid himself of a portion of his workforce is a factor which works in favour of decreased notice periods,” the court said in Rowsell. “However, courts realize that downturns in the economy cut both ways. They affect the employer’s ability to survive and they make it more difficult for the dismissed employee to find employment.”
In Rowsell, Quebecor said it had downsized because of severe competition. According to the company’s director of human resources, Quebecor was no longer number one in the world because of stiff competition. It undertook a restructuring and 12 locations were reduced to four. Nineteen other employees at the plant where Rowsell worked where also let go. The company had lost customers and overtime had drastically reduced.
The court generally accepted the evidence of Quebecor’s HR director. But it said there was no evidence as to the time when overtime was cut back, nor was the extent of the decline explained except to say it was “drastic.”
“Those matters are important whenever a court has to calculate damages for wrongful dismissal in relation to a reasonable notice period,” the court said. “Furthermore, it would have been helpful to me if Quebecor had introduced documents substantiating their economic plight. If public exposure were a problem, that concern could have been taken care of by a court order.”
The court said Rowsell was a “loyal, dedicated and valued employee.” He was technically skilled and had spent close to 16 years with the company. It pointed out that Quebecor presented him with a certificate on his 10th anniversary thanking him sincerely for his commitment.
Despite the lack of financial statements, the court said it accepted the company’s evidence it was going through a hard time. But it was also difficult for Rowsell, it said. Rowsell found a job less than five months after leaving Quebecor, although he had to be retrained for his new job and it paid less — $20 per hour compared to $27.35.
There was some argument that he had not mitigated his damages. He didn’t apply for employment with two companies that were in competition with Quebecor, but said he didn’t because he thought they were controlled by Quebecor. The court said the evidence simply didn’t support an argument that Rowsell had failed to mitigate his damages, and said he was “industrious” in his search for work. It awarded him 12 months’ notice.
The court calculated his annual salary to be $70,141.76. From that it deducted $59,612.68, the salary continuation from Quebecor and the amount he earned at his new job during the notice period. Therefore it awarded him $10,000 in damages.
For more information see:
• Rowsell v. Quebecor World Specialty Group, 2005 CarswellOnt 4051 (Ont. S.C.J.)
