The dangers of aggressive recruiting

Manager at automotive dealership awarded six months' notice after seven months on the job — court took service at previous employer into account in calculating damages
|employmentlawtoday.com

Courts have proven time and again that they will punish employers who aggressively recruit a worker, inducing him to leave secure employment, and then later dismiss him without cause.

The Ontario Superior Court of Justice recently awarded an parts and service manager at a car dealership in Sarnia, Ont., six months’ notice after he was let go without cause after being on the job about seven months.

Because the court found he was induced to leave secure employment, it took his tenure at his previous employer into account when calculating the reasonable notice period.

Background

Don Pereira was certified as an automotive technician in 1987 and worked in that capacity for several years before being promoted to service manager at a Canadian Tire in Kitchener, Ont. in 1992. He was hired by Sun Valley Chrysler in Sarnia, Ont., on Dec. 1, 1997, as the parts and service manager with a staff of 17 to 20 reporting to him.

He continued in that job until March 2001 when he left to become the parts and service manager at Sarnia Fine Cars. Pereira found it hard to adjust to his new position and, after six months, returned to Sun Valley Chrysler, which by that time had a new owner.

He worked in sales initially at the Chrysler dealership but was then promoted to general manager. When he found the demands of that job too onerous, he was assigned the position of parts and service manager.

When he returned to the Chrysler dealership after his stint at Sarnia Fine Cars, his seniority was restored and his vacation entitlement continued as if he had never left.

Pereira lured away

In late August or early September 2003, Pereira was contacted by Brian Drury, the body shop manager and acting service manager at Bailey Toyota. Drury asked him if was interested in working at Bailey Toyota and a meeting was set up between Pereira and Brian Bailey, the owner.

Pereira said he found the job offer attractive, but told Bailey he was concerned about making a move because of his experience at Sarnia Fine Cars and he wanted some assurance that his employment at the Toyota dealership would be secure.

Bailey said he recalled Pereira raising concerns and admitted to “talking up my business” but denied giving any guarantees to Pereira.

Pereira prepared a list of his pay and benefits expectations for Bailey’s consideration. In a memo dated Sept. 9, 2003, Bailey confirmed that Pereira’s annual base salary would be $65,000. The terms of employment also provided for payment of a commission on gross sales of parts and service, the use of a motor vehicle, one tank of gas per week and a cell phone.

Pereira accepted the position and started work as the parts and service manager at Bailey Toyota on Sept. 24, 3003.

Injured at work

On Feb. 7, 2004, Pereira left work with an injured back.

Bailey called him at home later that day and told Pereira his employment was terminated. Bailey said the business could not afford to pay both a service manager and a body shop manager.

After calling Pereira, Bailey offered the combined service and body shop management position to Drury. When Drury declined, Bailey phoned Pereira the following day and offered the combined position to him.

Pereira accepted and returned to work that day. Pereira spent some time learning the body shop systems from Drury and continued to fill the dual role of service and body shop manager until his employment was terminated on April 20, 2004.

Although no cause was alleged, Bailey suggested that Pereira’s management style was inconsistent with is expectations. Pereira was paid an additional two-and-a-half weeks’ salary and shown the door.

The court’s decision

The Ontario Superior Court of Justice said it was satisfied that Pereira was enticed to leave his job at Sun Valley Chrysler and was led to believe he could expect secure employment with Bailey Toyota.

It also said it was satisfied with Pereira’s attempt to mitigate his damages by looking for another job, even though he didn’t find another one until October 2004.

“Given the nature of Mr. Pereira’s employment, his age (44), the availability of similar employment and Mr. Pereira’s length of service, which includes his years with Sun Valley Chrysler since he was induced to leave that employment, it is my opinion that six months’ notice would have been reasonable,” said the court.

For more information see:

Pereira v. Bailey Toyota Ltd., 2005 CarswellOnt 7308 (Ont. S.C.J.)

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