ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 5435/06
DATE: 2012/11/16
BETWEE N:
WENDY EVANS
M. A. Hoy, for the Plaintiff
Plaintiff
- and -
COMPLEX SERVICES INC.
M. J. Bonomi, for the Defendant
Defendant
HEARD: September 19, 20 and 21, 2012
The Hon. Mr. Justice Kent
REASONS FOR JUDGMENT
Issue:
[1] Wendy Evans was wrongful dismissed by Complex Services Inc. This case requires the court to assess her damages and determine whether those damages should include a component for aggravated or bad faith damages based upon the conduct of her employer.
Background:
[2] On 6 May, 2005, Wendy Evans was dismissed without cause from her employment as a quality assurance analyst in the employee of Complex Services Inc., a corporation operating 2 casinos in the City of Niagara Falls Ontario. Wendy had been in the employ of Complex for just over 8 ½ years and was 52 years of age. She had played an important role within the information technology department. She was a dedicated and hard working employee, on-call, essentially, 24/7/365. She had been receiving, in addition to her regular remuneration, an annual bonus and had usually worked substantial paid over-time. She reasonably anticipated that her employment, her paid over-time and her annual bonus would be continuing.
[3] Although Wendy did not manage personnel, she managed computer systems, 11 in all, 2 of which were critical to the operations of Complex. While it is arguable that her role was non-managerial in the normal sense, it is the view of this court that management of an employer’s critical computer systems can be every bit as important to the employer as management of its personnel, particularly in the technological environment in which Complex existed.
[4] Wendy, in view of the foregoing, should have been compensated by payment of more than the amount to which she was entitled to pursuant to the Employment Standards Act.
The Notice Period:
[5] Counsel for the plaintiff argues that the range should be as high as 12 to 16 months. Counsel for the defendant suggests that even 9 months would be too high. He argues that a range of 6 to 8 months would be appropriate.
[6] The appropriate range for the notice period is much closer to that asserted by counsel for the defendant. It is supported by authorities such as Lacharity v. Kelcoatings Ltd. [1994] O.J. No. 3174 . This court finds, considering all of the circumstances, that the appropriate range for the notice period in the case of Wendy Evans is 9 months.
Pay Components:
[7] (a) Salary: It is common ground that Wendy’s base salary at termination was $50,400.
(b) Bonus: It is clear from the evidence of Debbie Di Lorenzo, payroll manager for the defendant that, as a result of the defendant missing financial goals for the fiscal year ending 31 March, 2006, Wendy would have received a reduced bonus of only $500 if her employment had continued.
(c) Paid overtime: Wendy’s potential overtime is difficult to estimate with accuracy. Examining the historic evidence, it would appear that although it may have been trending down, it would have remained significant and this court, therefore, finds that it would have been approximately 30 hours per month during the notice period. Her rate of pay for that overtime would have been $36.35 per hour.
(d) Health care benefit: The cost to provide Wendy’s benefit during the notice period would have been $431.86 per month according to Debbie Di Lorenzo. This court accepts that figure.
(e) Pension contribution: If Complex had contributed to Wendy’s pension during the notice period, the continuing contribution would have been 3% of her base salary according to Debbie DiLorenzo whose evidence this court accepts.
(f) Other: Counsel for the plaintiff argues that a figure should be included in the assessment of Wendy’s damages for other benefits, but there is not an evidentiary basis or case law to support any further allowance.
[8] Counsel for the defendant points out that Wendy received some counseling during the first 8 weeks after termination that was paid for through her employee benefits and invites the court, therefore, to deduct 2 months of the benefit premium. That invitation is declined as inappropriate.
[9] Wendy’s total anticipated annual gross pay for calculation purposes:
(a) Salary $50,400.00
(b) Bonus 500.00
(c) Overtime 13,086.00
(d) Health care benefit 5,182.32
(e) Pension contribution 1,512.00
Total $70,680.32
[10] During the notice period Wendy earned a total of $5,616.00 according to the evidence. She was paid at the time of dismissal the sum of $17,034.04.
[11] Counsel for the defendant points out that there was some evidence that Wendy was offered a position during the 9 th month after dismissal, which position she did not accept. Wendy explained that she anticipated a better offer would be forthcoming and therefore did not accept the offered position. In view of the timing and the circumstances there should be no deduction in any amount for Wendy’s non acceptance of that position.
Damages for Bad Faith Conduct:
[12] Before Wendy’s termination, management had decided that her skill set was no longer adequate for the position to which Complex had promoted her. As its computer systems became more complex, a higher level of skill than Wendy possessed was needed. Her employer felt that Wendy could not be re-trained to a higher level of skill and therefore determined to terminate her on 6 May, 2005.
[13] On May 5, 2005, the day before Wendy’s termination, a very unfortunate incident took place. Wendy required authorization for over-time work and further authorization to have a vendor access one of her systems. She needed that authorization from Tom MacKenzie, the defendant’s manager of operations and, from Larry Fretz whose position was at a similar level to that of MacKenzie. When she telephoned MacKenzie he advised her that Fretz was present in his office. Wendy then heard Tom MacKenzie advise Larry Fretz that the plaintiff was on the phone requesting authorization but “don’t spend too much time on this, Wendy’s getting canned tomorrow anyway.”
[14] The comment of Tom MacKenize was unprofessional, callous and careless. It was compounded by management when they did not deal with Wendy immediately and appropriately. When she confronted her superiors regarding the comment, she was not told the truth by either Tom MacKenzie or Tim Rodd, MacKenzie’s superior. She was allowed to continue working a further 9 hours overtime under the impression that she was not to be terminated the following day.
[15] Given the power imbalance between the parties, the treatment of Wendy, while perhaps inadvertent and unintentional was at minimum unfair and cruel. Wendy testified that following her termination she was depressed and required medication for her depression. No medical evidence was offered to establish whether Wendy’s depression was the result of the aforementioned mistreatment or whether it flowed from the loss of her employment.
Law:
[16] The Supreme Court of Canada in Honda Canada Inc. v. Kevin Keays 2008 SCC 39 , [2008], 2 S.C.R. 362 , addressed the appropriate law.
[17] The court held that in the Employment Law context, damages resulting from the manner of dismissal will be available if they result from circumstances where the employer engages in conduct during the course of dismissal that is “unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive”. The court reiterated, however, that generally, damages were not available for the actual loss of a job or for pain or distress suffered as a consequence of being terminated.
[18] In Gismondi v. Toronto 2003 52143 (ON CA) , [2003] O.J. 1490 the Court of Appeal in this Province observed at paragraph 23 that the pre-termination conduct of the employer could be considered, but noted at paragraph 32 of its judgment that for the conduct to give rise to damages it had to be “something akin to intent, malice, or blatant disregard for the employee”.
[19] More recently, in Pate v. Galway-Cavendish & Harvey , 2011 ONCA 329 , the same court agreed with a trial judge’s description of an employer’s offending intentional conduct as “significant misconduct”, “egregious” and “reprehensible”.
[20] Applying the above law to the evidence presented at trial drives this court to the conclusion that, while Wendy’s employers are certainly not to be commended for their conduct, their conduct does not appear to reach the level of misconduct contemplated in Gismondi or Pate . On the evidence presented, it is not open to this court to find that the misconduct of Complex through Tom MacKenzie and Tim Rodd caused or contributed to any depression on Wendy’s part. It is perfectly understandable that the fact of her termination caused Wendy to suffer considerable pain and distress over the actual loss of her job, but the Honda decision makes it clear that damages are not available for that kind of pain and distress.
[21] For the above reasons this is not a case where damages can be allowed for bad faith conduct on the part of the terminating employer.
Calculation of Damages:
[22] Given all of the above findings, the calculation of the damages of the plaintiff is as follows:
a) nine months pay $53,010.24
b) less amount paid on termination 17,034.04,
c) less amount earned during notice period 5,616.00
Net award of damages $30,360.20
Judgment accordingly.
Costs:
[23] If counsel are unable to agree on costs or if there are offers that bear on the issue of costs, counsel may make submissions in writing with the submissions of the plaintiff due 14 days from the date of release of this judgment and the submissions of the defendant within 14 days thereafter. Submissions are limited to 4 pages as a maximum length.
KENT, J.
Released: November 16, 2012
COURT FILE NO.: 5435/06
DATE: 2012/11/16
ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: WENDY EVANS Plaintiff - and - COMPLEX SERVICES INC. Defendant REASONS FOR JUDGMENT KENT, J.
Released: November 16, 2012