Author: Chris Drinovz, Partner, KSW Lawyers Employment & Labour Group (cdd@old.kswlawyers.ca)

One of the few early decisions issued by the BC Supreme Court so far looking at wrongful dismissal claims, notice periods and mitigation during “COVID” times is Mohammed v Dexterra Integrated Facilities Management, 2020 BCSC 2008.

EMPLOYEE’S DUTY TO MITIGATE

A terminated employee who fails to take reasonable steps to search for new employment may find that a court will reduce his or her entitlement to wrongful dismissal damages. The Court has a great deal of discretion when deciding how much the damage award should be reduced where the employee fails to mitigate their loss. The employer bears the evidentiary burden of proving that the dismissed employee failed to mitigate his or her damages.

CASE SUMMARY

In this case, the plaintiff worked for the employer as a supervisor of cleaning staff for the Tsawwassen Mills Mall for 17 months before being terminated without cause on November 11, 2019 (along with 40 other employees). He was 51 years old at the time. He was offered 4 weeks of working notice. He was able to secure alternative employment right after with Alpine Maintenance, but his employment was terminated after two months. He had not worked since.

The plaintiff brought a wrongful dismissal action, arguing that four weeks of notice was insufficient, and that he tried to find work in his field following his employment with Alpine Maintenance. He testified that the COVID-19 pandemic affected his ability to find work and mitigate his damages.

The Court looked at the usual Bardal factors and determined the plaintiff was entitled to five (5) months’ notice, mainly taking into account his age (finding that being over 50 years old was a material disadvantage) and job duties (including the importance of his role to help Dexterra maintain its contract with Tsawwassen Mills Mall). The Court made an important note that “length of service is less of a predominant factor where the job tenure was relatively short.” In this case although the plaintiff was with the employer for less then 2 years his notice period was five months.

It should be noted that the Court did not find that the length of reasonable notice was influenced by the COVID-19 pandemic since the notice period is determined as at the date of termination of employment and not by subsequent events – here the plaintiff was terminated prior to the pandemic starting.  However, in assessing whether the plaintiff mitigated his losses, the Court stated that economic factors “arising post-termination, such as those from the COVID-19 pandemic, can be relevant to mitigation if they impact the availability of equivalent employment” (para. 27). In this case, the plaintiff’s evidence that the pandemic affected his ability to find work was accepted by all parties.

TAKEAWAYS FOR EMPLOYERS

• The notice period increases for employees who are 50 years of age or older;
• For “short service” employees the length of service is less important when calculating the notice period;
• The COVID-19 pandemic might affect an employee’s duty to mitigate if it negatively affects their ability to secure alternative employment. However, each case is fact specific, and not all employees will be able to rely on this since many industries and job opportunities were not negatively impacted by the pandemic (some were in higher demand);
• Economic circumstances at the time of termination may be a factor, although they are not to attract undue influence (where employees were terminated after the pandemic started the notice period might be influenced by the conditions).

Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter or drafting of workplace vaccination policy, please contact Chris Drinovz at cdd@old.kswlawyers.ca.

Chris Drinovz is an experienced employment and labour lawyer in Abbotsford, Langley, Surrey & South Surrey, a Partner at KSW and Head of the Employment & Labour Group at KSW Lawyers (Kane Shannon Weiler LLP). Chris has been assisting local businesses with workplace issues since 2010. His expertise covers all facets of the workplace including wrongful dismissal, employment contracts, workplace policies, and WorkSafeBC matters, including occupational health & safety. Chris is on the Executive of the Employment Law Section of the Canadian Bar Association BC, and a Director for Surrey Cares and Greater Langley Chamber of Commerce.

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