A court has awarded 10 months’ notice to a worker who wasn’t able to satisfactorily perform his new duties after moving to a managerial position within the company.
Marcien Ross started working as a mechanic for Premier Horticulture in October 1993.
The company installed a computerized maintenance management system. In May 2003 Ross accepted the job of co-ordinator of the system. In his new position he was considered a member of management. He was paid $35,000 a year plus benefits.
Premier Horticulture used a considerable amount of mechanical equipment, which needed constant servicing and repair. The computer system operated slowly, and this frequently resulted in parts not being available when needed. Ross was not familiar with computers, and spent 80 per cent of his time working at it. This left little time for co-ordinating the mechanical work and supervising the mechanics.
On several occasions the company told Ross how important it was to get replacement parts. The computer was removed in May or June 2003, but it didn’t result in an improvement of the situation. His employment was terminated in August 2003.
No cause to terminate employment
The Manitoba Court of Queen’s Bench said the company did not have just cause to fire Ross. Parts weren’t being delivered on time, but it was difficult to say if it was because of the new computer system or the worker’s inexperience with it.
More to the point, the company had not given Ross suitable instruction that would have enabled him to meet the standard required for the job. The court ruled there was no evidence the company had educated Ross on what he could do to secure the prompt delivery of parts.
In addition, the company had not warned Ross that a failure to do so would result in his dismissal. A general manager testified he told Ross things were so bad he, “might have to let him go,” but Ross said he had no memory of such a statement being made. Even if the general manager had said that, it was not a clear warning his job was in jeopardy, said the court.
Therefore, the company did not have just cause to fire Ross. The court awarded him 10 months’ pay.
Duty to mitigate
The company said Ross failed to mitigate his damages. He had experience in sales and as a heavy equipment operator, but did not look for work in those fields. Nor did he apply for work as a mechanic, and he turned down an offer of a job with a railway.
Ross also turned down an offer of reinstatement by the company. In January 2004 it wrote him telling him he would be restored to his position of maintenance co-ordinator, at the same salary and benefits and with his length of service considered unbroken.
Ross turned it down and instead looked for work in newspaper ads and at the local job bank.
He found occasional work in summer 2004 and in the spring of 2005 found part-time work for three to four hours a day for a construction firm,.
Even though the court called his job search “not impressive,” it rejected the company’s argument that he failed to mitigate his damages. The onus is on the company to prove Ross likely would have found a comparable position if he’d made a reasonably committed search for one. It had not provided any such evidence, ruled the court.
Because of an ailing hip Ross was justified in not considering some jobs. He was similarly justified in not accepting the company’s offer of reinstatement. That was made subject to Ross performing his duties in a satisfactory manner. Ross would be working for the same manager who had previously expressed lack of confidence in him. So it was reasonable for Ross to think this would be an untenable situation, said the court.
For more information see:
Ross v. Premier Horticulture Ltee
, 2006 CarswellMan 34, 2006 MBQB 15 (Man. Q.B.)
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