An employee with approximately twelve years of service brought a wrongful dismissal action after being terminated during an alleged downturn in available work.
The employer argued that there was insufficient work and that the employee would have earned little or no income during any reasonable notice period.
The court held that the employee remained entitled to a common law wrongful dismissal remedy notwithstanding potential exemptions under the Employment Standards Act.
Applying the Bardal factors and accounting for economic conditions affecting the employer’s business, the court determined that a reasonable notice period was eight months rather than the twelve months that might otherwise apply.
The employee’s mitigation efforts, including temporary subcontract work and starting a business, were found reasonable, and damages were calculated based on eight months’ pay less mitigation income and termination pay already received.
