Employee awarded 26-months pay on termination despite labour shortgage

Sunira Chaudhri

Sunira Chaudhri

Toronto Employment Lawyer

Labour shortages have pushed businesses to innovate new ways to entice reluctant workers to re-enter the workforce. Still, the sting of a termination can create a resounding impact in the courts. Such was the case of Diane Currie.

The ‘Great Resignation’ has left much of our country with a glut of jobs to fill.


Labour shortages have pushed businesses to innovate new ways to entice reluctant workers to re-enter the workforce. Still, the sting of a termination can create a resounding impact in the courts. Such was the case of Diane Currie.


Currie worked for Nylene Canada Inc. (Nylene) and was terminated after 39 years of employment. She started her employment at 18 and did not attain a high school diploma, having attended only up to Grade 11. She had planned to work for Nylene until retirement.


Employed as a Chief Operator she scheduled the quality and utilization of production equipment, assigned work to production employees, handled minor personnel problems and ensured the proper functioning of equipment and safe working procedures.


In December 2018, she was told the company was discontinuing its fibre operation and that 17 employees were to be terminated, including Ms. Currie. She was 58 at the time of her termination.


Generally, in employment law, 24 months of damages is the ceiling for wrongful dismissal damages. Exceptional circumstances must be established in order to obtain wrongful dismissal damages that exceed that threshold. Currie was able to establish exceptional circumstances at trial.


The court found her entire working life had been dedicated to working for her employer.


The court stated: “She has known nothing else. She left high school to start working for her employer, earning $4.50 an hour.”


The court found that because of her age, she was in the “twilight” of her working years, that she had developed skills in “a very specialized field,” and that finding similar employment has not been easy.


The court also noted that the work landscape has evolved over the years significantly, which makes it difficult to transfer her skills to a new employer. It also noted that she must compete with people much younger than her who have a different set of skills that may now be required, such as advanced computer knowledge.


The court found that she was not well equipped to successfully obtain comparable employment. In so finding, it awarded her 26 months of compensation in lieu of notice.


An interesting component to this case was Ms. Currie’s mitigation efforts. She gave evidence that she applied to over 145 jobs.


Sometimes, when an employee loses their job and sues, opposing counsel will send suitable job opportunities to replace the income. Currie testified to receiving approximately 1700 job opportunities from Nylene’s counsel after she was terminated.


She also confirmed that while she was offered a part-time position, she refused to accept it. The Court found Ms. Currie could not be “faulted for turning down this position” finding the position was a casual on-call assignment for a fixed term at a lower salary.


Noting the impact COVID had on her job search, the court stated, “It is reasonable to say that during the past year employers may have had to downsize not expand, meaning there are fewer job opportunities available.”


In all, the court found Currie was entitled to damages in the amount of $130,962.22 representing the 26 months of notice.


In today’s job market, this case is compelling. Even though employment opportunities abound, long service employees in specialized industries can still get their day in court.


On to your questions for this week:


Q. I am a dental assistant and I work in a dental office. I have had issues with my manager and feel that she treats me differently. I always feel anxious when I am at the office. I was given an unfair warning letter so I decided to quit. Can I sue for how I was treated?


A. If you are on the receiving end of a disciplinary letter or other measure that you do not agree with, it is important that you communicate your disagreement or resistance to your employer, in writing whenever possible. It is very important for employees to exhaust all avenues in terms of trying to resolve personnel issues with your employer. That means reporting the issue to your supervisor and HR and asking for a remedy. Whether or not you took these steps to work with your employer prior to ending your employment will be important. When an employee quits without taking any steps to work with the employer or rectify the situation, that action may be seen as premature by a court, and a constructive dismissal claim or other claim against your employer may be much tougher to prove. If you believe you were subjected to serious mistreatment from your employer, get legal advice about your options.


Q. My employer has called people back to work in the office three days a week, starting in May. I currently have no daycare and have been managing working from home with my kids at school until now. If I have to go in to work three days a week, my children won’t have any care before and after school. Can I refuse to go back and just continue to work from home?


A. While your employer may be required to make reasonable childcare accommodations for parents, employees will largely be expected to work together with their employers for hybrid and return to work arrangements as COVID mandates lift. To avoid jeopardizing your job, consider what childcare options you can implement in May. If you need some additional time, perhaps speak to your employer about extending your return date to a later one to allow you more time to make the necessary childcare arrangements.


Have a workplace issue? Maybe I can help! Email me at sunira@worklylaw.com and your question may be featured in a future column.


The content of this article is general information only and is not legal advice.

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