Employees, rather understandably, often fall into a slump after learning of their termination.
Losing one’s job can be devastating, especially after decades of working for the same employer.
It is hard to imagine starting over, much less within weeks, of being terminated. This was a central issue in the British Colombia case of Frances Okano who worked as manager of the Vancouver Global Centre at Cathay Pacific Airways Limited until her termination in December 2020.
Okano worked for Cathay Pacific since 1986 — almost 35 years — rising through the ranks from a frontline reservations agent to manager. She earned around $118,800 a year in salary, 10% pension and a $173 monthly allowance.
Okano was 61 years old when she was terminated during the height of the COVID-19 pandemic.
At the summary trial, Cathay Pacific argued that it experienced an unprecedented downturn during the pandemic, which led to various cost-cutting measures including a series of employee pay reductions during Okano’s employment. In total, Okano accepted $10,692 in salary reductions before her termination.
While the court acknowledged Okano was entitled to 24 months of wrongful dismissal damages, the court imposed certain deductions on the award.
Firstly, the court heard evidence that Okano did not apply for jobs in the airline industry. While she applied to over 50 jobs outside of the industry, the court found Okano did not take reasonable steps to find alternative employment and reduced her 24 month award by three months. The court also reduced the award by 15% as a contingency in the event Okano reemployed before the end of the notice period.
This case provides many lessons for terminated employees to consider:
Failing to mitigate is risky business: Employees have an obligation to search for a similar job at a similar level of pay. You are usually required to record your job search efforts. If suing for wrongful dismissal damages, your employer may scrutinize the records of your search and make submissions that you have not done enough to locate a new job. Given the current worker shortage in Canada, mitigation is becoming a leading issue in many employment cases.
COVID-19 unpaid leaves and pay reductions can cost you: While Okano tried to sue for the return of the COVID-19 pay reductions she suffered before termination, the court found she accepted the reductions and did not award her the return of $10,692 in salary reductions. Employees should be careful when considering accepting pay reductions or unpaid leaves they cannot afford.
Consider the expense: Okano went to summary trial because Cathay Pacific offered a relatively low separation package on her termination and there was a lot of room for improvement. That isn’t always the case. Parties can use reasonable offers to settle in advance of a trial to limit issues and divert cases from trial, especially where the costs (and risk) can outweigh any potential upside.
On to this week’s questions:
Q. My employer hasn’t paid me for two days of work on my last pay cheque. When I asked when I will be paid I was told there were financial issues and hopefully I would be paid on my next pay. I said that I need to pay my bills and my boss said I didn’t have to come into work if I had a problem with it. What should I do?
A. Getting paid for the work you do on a reasonable schedule is a fundamental term of virtually any employment relationship. You may consider filing an unpaid wage complaint to the labour board if you continue to work with this employer. If this is a routine issue, it may impact the overall employment relationship and you may consider your legal options like a constructive dismissal claim and/or a claim for breach of contract. It is never a good idea to allow your employer to dictate unreasonable timelines to pay you for work already done.
Q. My employer is making me wear a mask to visit clients and I have refused. I’m not comfortable wearing a mask. My employer then put me on an unpaid leave and asked another employee to visit my clients. Is this allowed and when will I be able to return to work?
A. Employers are free to impose reasonable protective measures to ensure the workplace is safe. Your employer requiring masking during client visits could be seen by the courts as a reasonable request or imposition. Your refusal to mask may be seen as you declining to perform the necessary components of your role. It is possible that some of your clients have their own masking policies too. If there is a medical reason to support your discomfort with masking, share supporting medical documentation with HR. If that is not the case, you may want to reconsider your position on masking or you could face unemployment.
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.
