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The plaintiff sues for wrongful
dismissal. The defendant defends on the basis that the plaintiff was dismissed
for cause.
After reviewing the evidence of all
parties I am satisfied that the situation leading up to the plaintiff's release
was as follows:
The plaintiff was employed by the
defendant continuously except for seasonal breaks from 1976. In 1979 be became
head shipper. In July 1985, he was dismissed. In the last nine or ten months of
his employment things had been going increasingly wrong so far as shipments to
buyers were concerned. There were in particular some very serious mistakes
made, some of which could be directly attributable to the plaintiff, and some
of which could not. They depended on what was expected of his job and what was
expected seemed to be in the mind of the beholders. To illustrate, the failure
to wrap the shipment to San Diego can probably be attributed directly to the
fault of the……
To that I would add a further
consideration - the quality of the work performed.
In the case of Gillespie and Gillespie v.
Bulkley valley Forest Industries limited (1975) 1 W.W.R. 607, Mr. Justice
Robertson of the British Columbia Court of Appeal in referred to the above
passage said:
"…I respectfully accept it, subject
to the qualification that it is not necessarily exhaustive.
Counsel, cited a number of cases in
which various periods for notices of dismissal had been held to be appropriate.
I get next to no help from them, for each depended on its own facts, just as
this case does."
In the case of Nicholls v. Corporation of
the Township of Richmond et al (1985) B.C.D. 1296-05, McLachlin J. (as she then
was) in speaking of the principles underlying the award for damages for
wrongful dismissal said:
"It is not the termination but the lack
of adequate notice of termination. Damages are not awarded to compensate for
the termination but for the fact that the plaintiff has been deprived of the
period of notice to which in law he is entitled"
As Mr. Justice Robertson said in the
Gillespie case. That period of notice required depends on the facts in each
case.
In the final result, I find six months
notice in this case to be an appropriate and adequate period for notice of
termination. That period calculated from July 12 which I find to be the date of
termination. Damages will be calculated, however, from September 9 because the
period between July 12 and September 9 was the period of his injury when he was
unable to work. He would not have received any compensation for that period so
logically he can receive no damages. The calculation of damages, therefore,
will commence from September 9. They will be awarded on the basis of 14 - 40
hour weeks at $15.00 per hour or $8,400.00 gross. The evidence is that the
plaintiff would ordinarily have been entitled to three weeks holiday pay. In
the circumstances, since none had been taken for that year it is only
reasonable to assume that that holiday period would have been taken during the
balance of the year which is covered by the damages awarded. By virtue of my
award, that three week period has been covered by his receiving full salary for
the period. I consider this as sufficient and there will be no specific damages
for loss of holiday entitlement.
The plaintiff also asks specific damages
for expenses incurred in looking for work after his dismissal. In my view,
those expenses would have been incurred in any event and such a claim is
dismissed.
There will be Court Order interest dating
from December 12, 1984 and costs to the plaintiff.
New Westminster, B.C.
December 12, 1985
Comments / Questions?
Mr. Lawrence W. Coulter
Employment Lawyer
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#5 - 21183 88th Avenue
Langley, BC V1M 2G5
Canada
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e-Mail: LCoul59467@aol.com
Phone: (604) 882-5015 |
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