CITATION: Nezic v. Dom-Meridian Construction Ltd., 2016 ONSC 7496
COURT FILE NO.: CV-13-47785
DATE: 20161228
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
STEVE NEZIC
Plaintiff
– and –
DOM-MERIDIAN CONSTRUCTION LTD.
Defendant
Lia Moody and Stan Fainzilberg, for the Plaintiff
Emilio Bisceglia, for the Defendant
HEARD: October 24, 25, 26 and 27, 2016
REASONS FOR JUDGMENT
LEDERMAN J.
introduction
[1] This is a wrongful dismissal action brought by a long standing employee of the defendant and its predecessor company. When he left the employment of the defendant, the plaintiff was 74 years old and had been with the defendant and its predecessor for more than 31 years.
[2] The defendant is a family-owned construction company that provides services for private developers and municipalities, such as sewer, water and road work.
[3] All of the defendant’s construction work is seasonal in nature. It commences late winter or early spring of any given year, depending on the availability of work, start dates of projects and weather conditions. Projects stop due to various factors, including the owners’ requirements, weather conditions, and any municipality/engineering issues. Some projects may last up to just before Christmas. Because of the seasonal nature of the work, employees were subject to annual layoffs.
[4] The issues in this case turn on events in 2010 through 2013 and whether they gave rise to a voluntary retirement from employment or a wrongful dismissal.
BACKGROUND
[5] The plaintiff worked as a supervisor with the predecessor of the defendant from 1981 to 1993 and continued with the defendant as a foreman from 1993 to 2010.
[6] As such, the plaintiff occupied a relatively senior position with the defendant.
[7] Both a foreman and a supervisor act in a managerial capacity and the duties are similar in nature. A foreman manages a crew of workers directly while a supervisor may oversee a number of projects.
[8] While acting as a foreman, the plaintiff prepared production reports of what was taking place daily on the site and submitted them to Archie Iacobucci, head of operations and staffing. The defendant’s own documents identified the plaintiff as being a foreman. In this role, he ensured that all materials were on site, safety measures provided, road restrictions in place and he would attend meetings with the developer and representatives of the municipality.
[9] Over the years, the plaintiff was placed on layoff mostly in December before Christmas and would be recalled in the spring when work was available and resumed.
THE DEFENDANT’S POSITION
[10] The plaintiff worked as a foreman with a crew of four or five men (including a pipe layer, a top-man and general labourers). The defendant alleges that a fundamental change took place in 2010 in that the plaintiff was becoming physically less mobile and losing members of his crew for one reason or another. They either retired or were repositioned. The defendant submits that the plaintiff recognized that his supervisory/foreman role was basically at an end in 2010 and that he voluntarily retired from his employment with the defendant.
[11] The defendant states that the plaintiff thereafter became part of a pool of retirees that it would draw upon for certain spot work for particular projects as needed. It was of value to the defendant to utilize these retirees given their extensive prior history and experience with the defendant’s business.
[12] In 2011, the defendant states that it had a particular position available for the plaintiff and asked him to act, not as a foreman, but in a diminished capacity as an assistant to the senior supervisor for a specific project and that he agreed to that change in the nature of the work and came back to work. Accordingly, at this juncture he was no longer doing foreman work but rather serving as the “eyes” for management in monitoring various site activities and he understood that his employment in that capacity would cease when the project was completed. In 2011, the plaintiff worked for virtually a full year in that position from January to December.
[13] Then, in 2012, the defendant states that it called the plaintiff back for a specific assignment in August of that year to help out on the “Monarch” project on Kennedy Road and that his work was to be limited to that particular project.
[14] The defendant’s position is that in 2011 and in 2012, the specific assignments given to the plaintiff were not a continuation of the plaintiff’s previous employment because that relationship had ended in 2010 when he retired as a foreman.
[15] In 2012, the defendant says it was a new contract limited to the Monarch project and that no one promised the plaintiff work after the completion of that project or that it would re-position him to another project. The defendant states that in October, 2012, the Monarch project was coming to an end and the defendant advised him that there was no further work for him at that or any other project and let him go on October 26, 2012.
THE PLAINTIFF’S POSITION
[16] The position of the plaintiff is that he never retired in 2010 and that his work continued thereafter into 2011 and 2012. In those years, he was working as an assistant to a supervisor and not as a foreman but that the roles were similar in nature. He asserts that the cessation of his work on October 26, 2012 was a termination and he commenced this action for wrongful dismissal on April 3, 2013.
[17] On April 19, 2013, after the commencement of this action, the defendant offered the plaintiff employment at his previous rate of pay and performing the same duties as he had as an assistant to a supervisor.
[18] The letter offer of employment read as follows:
Over the last two years, we understood that due to your health and inability to stand over extended periods of time you could no longer work in the capacity of a Foremen and as such you could no longer work along with your crew. Nonetheless, I think we developed a good compromise that both allowed you to continue working in your reduced capacity, either by sitting in your van or in the site office and also still helped us through your assistance to the Senior Supervisors at times when they were very busy.
Much like last year, this year has been a very slow start and most of our employees are still on layoff. Any minor works that needed completion over the winter months have been looked after by our Senior Supervisors.
The good news is work will be getting started a little earlier this year and we are now about to get busy again. Furthermore, Monarch has finally asked us to complete the works on Kennedy Rd. If you remember, these are the works that could not be done last year because Monarch did not have Town and Regional approvals and as such the project unfortunately grinded to a halt in October.
Therefore, we would like to ask you to come off of layoff and return to finally complete the Monarch project, in the same capacity as you did last year. You will help to look after this project by being on site full time and parlaying any information or requirements to the Senior Supervisor. In essence, like last year, you will be there strictly as the eyes for this site’s Senior Supervisor. This will help free up some of his time and allow him to look after more than one project.
When this site is completed we will continue with this arrangement if another site is available and if all the Senior Supervisors still require assistance.
Please let us know if you can return to work in the same capacity as you did last year as an assistant to the Senior Supervisors. We look forward to hearing from you. I have tried several times to reach you by phone also.
[19] A follow up letter was sent on April 22, 2013 which read:
We have been trying to reach you on several occasions by phone and have left messages for you.
We were finally asked by Monarch to complete the Kennedy Road project in Caledon. This is the site you were working on last year up to the point of base asphalt. At that time you were laid off due to the fact the job was stopped because Monarch did not have approval from the Town or from the Region.
We would like for you to come back to finally complete this work. If you are able to, we would appreciate it if you could let us know, otherwise we would have to get someone else.
We are still scheduling work for the balance of the year. Once this portion of the work is completed for the Monarch project we will see what we can schedule for you as time goes forward.
[20] The plaintiff states that he accepted this position on a without prejudice basis in mitigation of his damages. His lawyer wrote to the defendant’s lawyer as follows on April 24, 2013:
A copy of your client’s correspondence to my client, dated April 22, 2013, has been provided to me for review and response.
As you are aware, it is our position that Mr. Nezic’s employment was terminated by your client on or about October 26, 2012. In my opinion, the facts amply support such a conclusion. Without revisiting all of those facts, the record demonstrates that there were no allegations of a layoff at the time my client was sent home. Indeed my client pleaded for an explanation and was met with silence. It was not until after we sent a demand letter that a layoff was first alleged.
Your client’s decision to send my client home has caused him to suffer extreme financial hardship. It is for that reason and his legal obligation to attempt to mitigate his loss of employment, that without prejudice to his action for wrongful dismissal, Mr. Nezic is prepared to accept your client’s offer of employment. Kindly advise the undersigned at your earliest convenience when and where your client wishes Mr. Nezic to report for work.
[21] Of note, is the fact that neither the defendant nor its counsel took issue with the plaintiff solicitor’s characterization that the plaintiff accepted employment in April, 2013, as an act of mitigation.
[22] The plaintiff returned to work on this basis. However, a few weeks into performing his duties as an assistant to the senior supervisor, he was told that the defendant could only offer him continued employment in the position of flagman. Even though it was a very basic level position and a far cry from being a supervisor or foreman, the plaintiff at first agreed to work in that capacity as he needed employment. Over the next two weeks of trying out that position, the plaintiff says he found it demeaning and humiliating and was not receiving proper lunch or coffee breaks during his work periods. In addition, he discovered that he had to join the union after 31 years of non-unionized work. He did fill out an application and paid union dues but in quick order he realized that he did not want to be part of a union and a few days later requested and received back his union dues.
[23] On June 14, 2013, the defendant advised the plaintiff that he was obliged to join the union in order to continue to work as a flagman. The plaintiff was unwilling to join the union or continue to work as a flagman. The defendant had no other work for the plaintiff. In addition, the defendant advised the plaintiff that it was giving him formal notice that his employment with the defendant would be terminated as of October 30, 2013.
[24] The plaintiff says that he was wrongfully dismissed from his employment on October 26, 2012; alternatively, he asserts that he was constructively dismissed from his employment when he was demoted to the position of flagman in May, 2013.
WAS THE PLAINTIFF WRONGFULLY TERMINATED ON OCTOBER 26, 2012?
[25] Unlike the way the plaintiff was treated in being laid off from his employment in previous years, the events in October, 2012 were dramatically different:
(a) The plaintiff’s last day of work in 2011 was December 23, 2011. Yet in 2012, he was let go from his employment in October as opposed to December when there was still work left to be done at the site at which the plaintiff was working;
(b) There was moderate fall weather at the time and there was still construction work capable of being performed. Generally, October is part of the busy season to complete jobs before frost conditions set in. In all of his years of employment, this was the first time he was let go in October;
(c) Only the plaintiff was told to go home and no other employees. Archie Iacobucci testified at first that 15 additional employees were laid off. However, he had stated on discovery that except for the plaintiff, they were all repositioned. He then testified that based on examining the Records of Employment, in fact, a total of 5 employees were laid off but could not confirm that they had worked at the Monarch project site. His evidence on this evidence is not reliable and it appears that the plaintiff was treated differently than the others;
(d) The plaintiff was abruptly told to go home in the middle of his shift (when work such as boulevard paving was still to be done) and not to return. He was never told that it was a lay off. According to the testimony of Miguel Sousa, who had served as a foreman with the defendant since the late 1990’s, it was unusual for an employee to be told to go home in the middle of a shift. Dominic Iacobucci, the owner of the defendant, testified that on October 26, 2012, the foreman on the Monarch project called him about a pipe leak problem and then said that the plaintiff was present but that he had no further work for him. Dominic Iacobucci just told the foreman to tell him to “go home”;
(e) When he returned to the office to drop off the keys to the truck, the only one who spoke to him was Susie Iacobucci, the long-time Office Administrator who simply said “I don’t know what to say. I am sorry.”
(f) No recall date was ever discussed with the plaintiff;
(g) Unlike 2011, when the plaintiff and other foremen and supervisors received written notice that they would be laid off on or about December 23rd, and called back in the New Year as needed, he did not receive any formal or indeed informal notice of layoff in October, 2012;
(h) Although he repeatedly made requests as to what he did wrong and why he was being let go, he received no response;
(i) The plaintiff testified that he had no interest in retiring despite his age and had no difficulty performing the work. He never viewed himself as part of a pool of retirees.
[26] The evidence of the defendant was that the plaintiff voluntarily resigned at the end of 2010. Yet there is nothing in writing to confirm that. Even as late as April 2013, letters from the defendant to the plaintiff offering him employment state that the plaintiff had been on lay off: no mention that he had retired in 2010.
[27] The defendant’s position that the plaintiff retired as early as 2010, and thereafter assisted only on an as-needed, project by project basis lacks credibility as there is no objective evidence of any retirement by the plaintiff.
[28] The inescapable conclusion is that Archie Iacobucci made the determination on his own that the plaintiff could no longer do the work and just phased him out, under the guise that he was retiring. The defendant even invited the plaintiff to its Christmas party in December 2012.
[29] On the basis of these facts, the plaintiff has established that he was terminated from his position on October 26, 2012 without cause. In any event, even if the plaintiff had been laid off on that date, s. 56 of the Ontario Employment Standards Act, 2000 provides that an employee is deemed terminated if the employer lays the employee off for a period longer than the period of a “temporary layoff”. As the plaintiff was not recalled to work within the time period specified in the Employment Standards Act, his employment was deemed to be terminated.
[30] Given this finding, it is unnecessary to consider whether the plaintiff was constructively dismissed in May, 2013, and if so, whether the action should be stayed on the basis that the plaintiff was a union member at the time and any employment dispute was subject to the grievance process in accordance with the Collective Agreement.
NOTICE PERIOD
[31] When an employee is dismissed without cause, the amount of reasonable notice depends on the various Bardal factors including character of employment, length of service, age of employee and availability of comparable employment having regard to the employee’s experience, training and qualifications: Bardal v. Globe & Mail Ltd., 1960 CanLII 294 (ON SC), 24 D.L.R. (2d) 140 (Ont. H.C.).
[32] The law of reasonable notice in relation to aging employees has been evolving. It has recognized the modern reality that employees are staying in the workforce longer, as for many, it is an economic necessity, and for some, a desire to continue to be engaged; and that similar replacement work for the older employee is not readily available [Hussain v. Suzuki Canada [2011] O.J. No. 6355 (SCJ)]. Further, character of employment, whether it is of lower level skill or not, is of declining importance when considering the reasonable notice entitlement [Di Tomaso v. Crown Metal Packaging Canada LP 2011 ONCA 469].
[33] Counsel for the defendant argued that the 2012 year represented a new reality in the nature of the plaintiff’s employment in that he only worked for a period of three months, i.e. August to October, and accordingly, that should be the notice period to which the plaintiff would be entitled.
[34] No evidence was led to suggest that the period of time worked in 2012 and afterward was in fact the “new normal” for other foremen or supervisors in the employ of the defendant. At para. 12 of the Amended Statement of Defence the defendant admits that “2012 was a particularly slow year for Dom-Meridian Construction”. In all years previous to 2012, the plaintiff had in fact been employed for most of the calendar year. And in fact, in 2013, the Monarch project resumed in April of that year. Therefore, the amount of time worked in 2012 is not a suitable benchmark to determine the amount of reasonable notice.
[35] In Kotecha v. Affinia Canada ULC, 2014 ONCA 411, the Ontario Court of Appeal considered the notice period for a dismissed employee who was 70 years old, had 20 years of service with the employer and no realistic possibility of obtaining similar employment and held that 18 months was appropriate.
[36] The age of the plaintiff and years of service are greater in the instant case than in Kotecha and would warrant a slightly higher notice period.
[37] Given the plaintiff’s age of 74, supervisory positions held, 31 years of service and the limited opportunities of similar employment, he is, in my view, entitled to 20 months’ pay in lieu of notice.
MITIGATION
[38] The onus of demonstrating that the plaintiff has not mitigated rests with the defendant.
[39] Counsel for the defendant argued that the plaintiff was advised in June 2013 that his employment would be terminated as of October 30, 2013 and therefore the plaintiff failed to mitigate by at least staying on during that period of working notice. The plaintiff ceased working because he was being offered only the low level position of flagman and only on the condition of his joining the union. No other positions were offered for the rest of the term up to October 30, 2013. The plaintiff was not required as an effort towards mitigation to accept and continue on in the inferior position as flagman which was substantially different from supervisory work. He had been invited back in April 2013 as an assistant to a supervisor, not as a flagman and he was not obliged to mitigate by taking on that demeaning change in employment.
[40] The plaintiff made various job search efforts including visiting other construction sites seeking employment and making applications and phone calls to other possible employers. Given his age and his 31 years of continuous service to the defendant in a supervisory capacity, it is not surprising that he was unsuccessful in finding suitable alternative employment. Further, the defendant made no effort to provide him with any recommendations or assistance in finding other employment. The plaintiff’s mitigation efforts were satisfactory in the circumstances.
CONCLUSION
[41] The plaintiff is entitled to 20 months’ pay in lieu of notice. As the plaintiff had worked for the defendant on a seasonal basis and in most years from the early spring until December, it is appropriate to determine the amount of pay by averaging his annual salary over the 2010 and 2011 years. His salary in 2012 should not be considered since it was an aberration in that the work period was only from August to October. [See Serrao v. National Bank Financial Inc., 2004 CanLII 880 (Ont. S.C.J.) at para. 29].
[42] On this basis, I trust that counsel will be able to calculate and agree on the amount of pay in lieu of notice together with benefits to which the plaintiff is entitled. Over the period of 20 months’ notice, the plaintiff was employed at his wife’s flower shop in addition to returning to work for the defendant from April to June 2013 and credit should be given for income received as a result of that work. If counsel cannot agree on the amounts, they may make written submissions in respect thereof.
[43] The defendant’s conduct was not of the high handed nature that would otherwise attract an award of punitive damages.
[44] If the parties cannot otherwise agree, costs are to be addressed in writing; the plaintiff’s submissions to be made within 30 days; the defendant’s response within 15 days thereafter; and any reply, 7 days thereafter.
Lederman J.
Released: December 28, 2016
CITATION: Nezic v. Dom-Meridian Construction Ltd., 2016 ONSC 7496
COURT FILE NO.: CV-13-47785
DATE: 20161228
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
STEVE NEZIC
Plaintiff
– and –
DOM-MERIDIAN CONSTRUCTION LTD.
Defendant
REASONS FOR JUDGMENT
Lederman J.
Released: December 28, 2016