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This is an action for wrongful dismissal
in which the sole issue is the amount that should be awarded to the Plaintiff
as a result of the termination of his employment by the Defendant without
appropriate notice.
The Plaintiff was employed in the foundry
of the Defendant as a labourer intermittently from 1973 to 1984, almost 9 years
altogether. He was paid hourly and was subjected to frequent lay-offs as the
available work dictated. He was a loyal and productive employee, somewhat
limited in his ability to switch positions that required skills over and above
that of a labourer, and markedly limited in his ability to understand English.
When laid off on more than one occasion he obtained work elsewhere and is
regularly employed with a sea food company. Hi is middle aged, his children
have all grown up and he is apparently healthy.
During one long period while the
Plaintiff was laid off the Defendant terminated his employment by a written
notice, effective the day it was delivered, January 15th, 1983, but nonetheless
the Plaintiff was re-hired a few months later and after further intermittent
lay-offs was finally laid off in July 1984. No final notice of termination was
ever delivered and it was not until long after the event he commenced his
suit.
The Defendant is a small Company that
engages in the casting of ductile iron. There are about fourteen employees in
all and in recent years work has been sparse and there have been many lay-off
periods. The Defendant could have given appropriate termination notice upon the
occasion of any of the lay-offs and subsequently re-hired the Plaintiff without
any severance pay at all, but to its regret failed to do so.
Counsel for the Plaintiff has suggested
that treating the whole period as an aggregate of 8 years and 11 months, and
the Plaintiff as a long term employee (see Krewenchuk v Lewis Construction Ltd.
(1985) C.C.E.L. (206) the appropriate award should be six months wages in lieu
of notice. Counsel for the Defendant disagrees and says that the intermittent
periods of employment preclude treating the Plaintiff as such and in any event
after the written termination was given the Plaintiff in January, 1983, the
Plaintiff's acceptance of further employment was tantamount to a waiver of the
Defendant's reputation of the contract and thus the period in question should
be only for the few months he was thereafter engaged. Counsel has cited
Schellenberg v. Marzen Artistic Aluminum Vancouver Registry #C836999, May 17th
1985, unreported, as authority for this proposition.
I do not agree with the contention of the
Defendant with respect to the waiver of breach. The contract was at an end at
the time so far as both parties were concerned and it would be unequitable to
permit the Defendant to take advantage of his own breach of it, unless the
Plaintiff had waived the breach in no uncertain terms as a condition of his
rehiring.
On the question of damages, considering
the many authorities that have been referred to and particularly the decision
of the Chief Justice in Ansari et al v B.C. Hydro Vancouver Registry
#C850821-22-23 and 25 April 3rd 1986, unreported, I am of the view that the
Plaintiff was a long term employee, at least in the broadest sense, and payment
of three months wages in lieu of notice amount to a total of $6,300 would be
adequate in the circumstance, taking into consideration the work he obtained
while laid off.
Judgment accordingly with Court Ordered
Interest from July 1984 with costs.
New Westminster
January 21, 1987
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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